Henry Mayne asserts that schools of Hindu law boast the oldest lineage of any existing legal system, and they currently show no signs of decline. Hindu law is among the oldest and most abundant legal systems in the world.
Sources of Hindu Law in Family Law comprise a collection of individual regulations that govern the social circumstances of Hindus, including marriage and divorce, adoption, inheritance, minority and guardianship, family issues, and more.
Custom as a source of Hindu law is one of the ancient sources that overrides ancient texts and hymns if it is proven to be deep-rooted, continuous, and valid.
Ancient Sources of Hindu Law
The origins of Hindu Law can be categorized into:
Ancient Sources
• Shruti (Vedas)
• Smritis
• Digest and Commentaries
• Customs
Modern Sources
• Equity, justice, and good conscience
• Legislation
• Precedent
Ancient Sources of Hindu Law
Shruti
Shruti is one of the oldest schools of Hindu Law that essentially signifies 'that which is listened to'. The term Shruti originates from Sanskrit, rooted in “shru,” which translates to ‘to hear’. The Shruti comprises four Vedas:
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Rigveda (It is among the oldest texts and contains hymns that celebrate natural forces)
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Yajurveda (It includes mantras for rituals and sacrifices)
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Samveda (Includes verses for chanting by sages)
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Atharvaveda (It focuses on magic, charms, and incantations)
Shrutis include 6 Vedangas (which are supplementary fields of study in Hinduism that arose in ancient periods, connected to Vedic studies) and 18 Upanishads (focused primarily on spiritual rituals and paths to achieving true knowledge or Moksha).
Smriti
Smriti is one of the oldest Sources of Hindu Law in Family Law that literally signifies "that which is recollected." Smritis can be described as a documented record of the wisdom of the sages.
The Smritis are thought to have come from divine inspiration, not as God's direct words, but as collections of wisdom and knowledge that sages remembered from their spiritual experiences.
Smritis are the most ancient sources that can be categorized into two types:
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Dharmasutras (Prose Style) – It comprises brief assertions outlining wide-ranging and general concepts of common sense and fairness.
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Dharmashastra (Poetic Form) - It includes an array of treatises and commentaries; the Smritis provide direction regarding personal duties, obligations, and moral behaviour towards oneself, family members, and as a responsible individual in society.
Among the different Smritis, the most significant include:
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Manusmriti
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Yajnavalkya
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Naradsmriti
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Parashar Smriti
Digest and Commentaries
After the Smritis, the subsequent phase in the development of Hindu law includes the generation of commentaries and summaries that clarified the teachings and tenets present in the Smritis.
The two main commentaries are:
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Mitakshara – An exposition on the Yajnavalkya Smriti by Vijneshwara.
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Dayabhaga – This is a text authored by Jimutvahana that mainly addresses the process of inheritance.
In Balwant Rao v. Baji Rao (1921), the Privy Council ruled that commentaries do not create law, but rather clarify and interpret the law, serving as evidence of the customs in effect when they were composed.
Custom as a Source of Hindu Law
Custom as a source of Hindu Law is so influential among the masses in ancient times that it overrides all other schools of Hindu Law. Customs and practices have greatly shaped the evolution of legal systems globally, with Hindu Law also placing considerable importance on them.
Section 3(a) of the Hindu Marriage Act, 1955 describes “custom” and “usage” as rules that have been consistently and uniformly followed over a long period, acquiring the status of law among the Hindu populace in a particular locality, clan, ethnicity, society, community, civilization, or family.
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As long as the regulation is definite and not irrational or against public policy; and
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On the condition that if a rule is relevant solely to a family, it has not been nullified by the family.
For custom to be the source of Hindu Law in Family Law, it must have gained the support of the masses through prolonged and consistent application.
The Shruti and Smriti are believed to be primarily founded on ancient sources of law; in areas not covered by the Shruti and Smritis, custom as a source of Hindu Law significantly influenced the legal principles established during that period.
No custom can bind society if it contradicts public policy, nor can immoral practices be accepted and sustained; even if they are followed by part of the community, they cannot be upheld by any legal court.
Fundamentals of legitimacy for custom as a source of Hindu Law in Family Law
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Antiquity – For a custom to be regarded as a valid binding custom, it needs to be ancient or practiced since time immemorial.
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Certainty – The practice must be precisely outlined; it cannot be ambiguous or unclear.
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Reasonable – A custom is deemed adequately reasonable when it adheres to the core principles of morality in the legal framework of the state where it is observed.
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Adherence to Law and social ethics – A tradition must not violate public policy and the laws of the region. If the law prohibits it, it will not be deemed an acceptable tradition.
British Colonial Impact:
The entry of the British into India during the 18th century significantly influenced Hindu law. The British aimed to formalize Indian laws to create a consistent legal system throughout their regions.
Translating and Encoding Documents
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Scriptural dependence: Initial colonial leaders such as Warren Hastings determined that Hindus ought to be ruled by their religious regulations.
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Pandits and scholars: British judges initially depended on court Pandits and ordered translations of Sanskrit texts (such as the Dharmashastras and Manusmriti) to develop summaries on inheritance, contracts, and family organization.
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Strict interpretation: Converting adaptable local traditions into established English legal statutes frequently rendered customary practices more inflexible than they initially were.
Development of Anglo-Hindu Jurisprudence
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Precedent system: British courts established an extensive collection of case law via judicial interpretation, implementing English principles of "justice, equity, and good conscience."
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Centralized authority: By resolving local family and property conflicts in colonial courts, the British reinforced state power over domestic issues, surpassing independent community or caste councils.
Principal Legislative Measures
The British implemented particular social reform laws that changed conventional family structures:
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Abolition of Sati Act (1829): Prohibited the act of widow burning.
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Hindu Widows' Remarriage Act (1856): Authorized the remarriage of Hindu widows, but punished remarried widows by denying them their deceased husband's inheritance.
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The Marriage Dissolution Act of 1866 for Native Converts: Permitted a Hindu marriage to be ended if one partner converted to Christianity.
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Child Marriage Restraint Act (1929): Established minimum age requirements for marriage to prevent child marriage (referred to as the Sarda Act).
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Hindu Married Women's Right to Separate Residence and Maintenance Act (1944): Provided wives the legal entitlement to reside apart and seek maintenance under particular circumstances of mistreatment.
Hindu Law during the British Era:
The British colonial authorities established their legal framework, which greatly impacted Hindu law. The Hindu Widow Remarriage Act of 1856 and the Hindu Inheritance (Removal of Disabilities) Act of 1928 were significant laws intended to modernize traditional Hindu customs.
Modern Sources of Hindu Law
Fairness, Equality, and Moral Integrity
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Equity is equivalent to fair treatment, and modern legal systems primarily rely on preserving neutrality. This legal principle is deeply grounded in the ideals of Justice, Equity, and Good Conscience.
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When ancient sources fail to clarify a particular aspect, it is instead regulated by the principles of Justice, Equity, and Good Conscience.
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In Gurunath v. Kamalabai (1951), the Supreme Court determined that when there is no applicable Hindu Law, judges are empowered to resolve cases based on the principles of Justice, Equity, and Good Conscience.
Post-independence
With the passage of the Amendment Act of 2016, daughters will now be coparceners and possess an equal share in joint Hindu family property alongside males. It is important to highlight the subsequent point from the case:
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To assert a share of the joint Hindu family property, the daughter is required to live there in 2005.
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If the daughter passes away before the new legislation being implemented, her legal heir will not be able to claim a share of the joint Hindu family property.
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To ensure an equal standing in the coparcenary property, the daughter's father must still be living at the time the law is enacted.
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The daughter’s assertion as a coparcener in the joint Hindu family property following the 2005 Amendment would not affect the alienation, disposal, or transfer of any joint family property or a registered division conducted prior to the amendment act.
Legislation
Legislation, referred to as the written form of law, is regarded as a modern source of Hindu law.
Before legislative laws were established, various regulations and customs existed in different regions of the nation.
Laws are needed not just to achieve consistency in legal standards, but also to eliminate cruel and unreasonable practices.
Instances of significant laws regarding Hindu Law include
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The Child Marriage Restraint Act, 1929
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The Hindu Marriage Act, 1955,
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The Hindu Adoptions and Maintenance Act, 1956,
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The Hindu Succession Act, 1956,
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The Hindu Minority and Guardianship Act, 1956, etc.
Clause 3(a) of the Hindu Marriage Act, 1956.
According to the established legal framework, customs are defined in Section 3(a) of the Hindu Marriage Act, 1956. The different necessities listed in this section are:
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Continuity
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Uniform observance
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Practised for a long time
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Certainty
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Reasonability
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Not opposed to public policy
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It was not discontinued by the family in which it was observed.
Adhering to all these requirements, a custom as a source of Hindu Law gains the authority of law in any locality, tribe, community, or family that observes it.
Hindu Succession (Amendment) Act, 2005
Regarding Hindu women’s property rights, the 1956 Act omitted several aspects that disadvantaged them. Consequently, following fifty-eight years of independence, the government at that time revised the 1956 Act in 2005, aiming to enhance the economic empowerment of Hindu women.
This legislation received approval on September 5, 2005, based on the recommendations of India's 174th Law Commission, and is seen as a significant milestone in the evolution of Hindu women's rights. The recent suggestion to alter the Hindu Succession (Amendment) Act, 2005, marks a significant milestone for women’s rights. Women possess equal and unconditional rights to inheritance as stipulated by law. It transformed a daughter into a coparcener, granting her the same rights as a son.
Following the 2005 amendment Act, she may also serve as a Karta. The 2005 Act tackles disparities in ancestral property, residential homes, and widows' rights, while safeguarding the interests of certain new heirs by including them in the Class I heirs category.
Court Decisions
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Judicial precedents also constitute an integral source of Hindu Law in Family Law.
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The word “Precedent” refers to a lower court adhering to the ruling of a higher court when the ruling pertains to a shared legal issue.
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The SC judgments are obligatory for all courts across India, whereas High Court rulings serve as precedent for all courts in their respective states, unless they have been overturned or altered by the Supreme Court.
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When there is a significant issue that legislation does not address, the Courts illuminate these topics and establish legal definitions.
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In Luhar Amritlal Nagji v. Doshi Jayantilal (1960), the Supreme Court observed that judicial decisions have become a crucial source of Hindu Law in Family Law, meaningfully transforming and augmenting the traditional Hindu legal structure, thereby becoming important modern sources of Hindu Law.
Debate on Uniform Civil Code:
The issue of implementing a uniform civil code applicable to all citizens, irrespective of their religion, has sparked debates and continues to be a multifaceted and politically sensitive topic.
Conclusion
Hindu law is considered a sacred code created by sages or people asserting direct connection with the divine force. In truth, the foundations of Hindu law in India stem from ancient sources, custom as a source of Hindu Law, judicial decisions, and statutory laws. These sources constitute the essential foundation for the legal framework overseeing various aspects of Hindu personal law.
FAQs
Q1. What are the primary schools of Hindu Law?
The primary schools of Hindu law are classified into two main types: ancient sources and modern sources.
Q2. What are the different kinds of Hindu law?
Conventional Hindu law is categorized into two primary schools of Hindu Law that arose from various interpretations of ancient sources: the Mitākṣarā school and the Dāyabhāga school.
Q3. How many acts in Hindu law?
Modern Hindu law is mainly based on 4 key acts enacted in the 1950s, although extensive legal collections usually feature 5 or more fundamental statutes.
Q4. How many marriage types are recognized in Hindu law?
Ancient Hindu scriptures, such as the Manusmriti, describe eight customary types of marriage (Vivaha). They are classified into two primary groups: endorsed (righteous) and rejected (non-righteous).
Q5. What are the ancient sources of Hindu law?
The development of Hindu law extends over millennia, transitioning from ancient religious obligations and regional traditions to British colonial regulations and contemporary parliamentary legislation.