Hindu law has the oldest pedigree of any known

system of jurisprudence, and even now it shows no

sign of decrepitude.”- Henry Mayne.
Origins of Hindu Law
It is believed that Hindu law is a divine law. It was
revealed to the people by God through Vedas. Various
sages and ascetics have elaborated and refined the
abstract concepts of life explained in the Vedas. From
thousands of years people living in the Indian
subcontinent have been leading their lives by
following the guidelines and concepts given in the
Vedas.
These guidelines have evolved into rules followed by
the people and enforced by the rulers and have thus
become de facto law. In this modern times, the same
laws have been retrofitted to suit present conditions
and have been codified in the form of several acts of
which the important ones are - Hindu Marriage Act
1955, Hindu Adoption and Maintenance Act 1956,
Hindu Minority and Guardianship Act 1956, and Hindu
Succession Act 1956.
Source of Law:
The phrase “source of law” has several connotations.
It may be the authority which issues rules of conduct
which are recognized by Courts as binding.
In this context, ‘source of law’ means ‘the maker of
law’. It may mean the social conditions which inspires
the making of law for the governance of the
conditions.
In this context it means ‘cause of law’. It may also
mean in its literal sense the material from which the
rules and laws are known.
In this sense the expression means the ‘evidence of
law’ and it is in this sense that the expression ‘source
of law’ is accepted in Jurisprudence.
Vijnaneshwar (commentator on the Yajnavalkya Smriti
and founder of Mitakshara School) has called it
Jnapak Hetu i.e., the means of knowing law. It is
important to study the sources of law because in
every personal legal system only that rule is law
which has place in its sources. A rule not laid down or
not recognized in the sources is not a rule in that legal
system.
The word ‘Hindu’ first appeared in the Old Persian
language which was derived from the Sanskrit word
Sindhu, the historic local designation for the Indus
River in the north-western part of the Indian
subcontinent. A Hindu is an adherent of Hinduism.
Hindu law is a set of personal laws governing the
social conditions of Hindus (such as marriage and
divorce, adoption, inheritance, minority and
guardianship, family matters, etc.). It is not Hindus
alone who must follow Hindu law but there are several
other communities and religious denominations that
are subject to its dominion such as Jains, Buddhists,
Sikhs, Brahmo-Samajists, Prarthana-Samajists, the
Virashaivas and Lingayats and the Santhals of Chhota
Nagpur besides others.
In Sir Dinshah F.Mulla’s ‘Principles of Hindu Law’, the
learned editor has defined ‘Hindu law’ in the following
 words: “Wherever the laws of India admit operation of
a personal law, the rights and obligations of a Hindu
are determined by Hindu law, i.e. his traditional law,
sometimes called the law of his religion, subject to the
exception that any part of that law may be modified or
abrogated by statute.” Law as understood by Hindus
is a branch of dharma.
Nature and scope:
In this article, the scope will be restricted to finding
out the sources of Hindu law, and critique on some of
the definitional aspects of the sources and a general
critique of the sources.
Sources of Hindu Law:
The sources of Hindu law can be classified under the
following two heads:
I. Ancient Sources
Under this would come the following:
1. Shruti
2. Smriti
3. Digests and Commentaries and
4. Custom.
II. Modern Sources
Under this head would come:
1. Justice, equity and good conscience
2. Precedent, and
3. Legislation.
Ancient Sources
Ancient Sources: Before the codification of Hindu
Law, the ancient literature was the only source of the
law. These sources can be divided into four
categories:
 (i) Shruti-
It literally means that which has been heard. The word
is derived from the root “shru” which means ‘to hear’.
In theory, it is the primary and paramount source of
Hindu law and is believed to be the language of the
divine revelation through the sages.
Shruti: Shruti means "what is heard". It is believed
that the rishis and munis had reached the height of
spirituality where they were revealed the knowledge of
Vedas. Thus, shrutis include the four vedas - rig,
yajur, sam, and athrava along with their brahmanas.
The brahmanas are like the apendices to the Vedas.
Vedas primarily contain theories about sacrifices,
rituals, and customs. Some people believe that Vedas
contain no specific laws, while some believe that the
laws have to be inferred from the complete text of the
Vedas.
The synonym of shruti is veda. It is derived from the
root “vid” meaning ‘to know’. The term Veda is based
on the tradition that they are the repository of all
knowledge. Since vedas had a divine origin, the
society was governed as per the theories given in
vedas and they are considered to be the fundamental
source of Hindu law.
Shrutis basically describe the life of the Vedic people.
There are four Vedas namely:
1. Rig Veda (containing hymns in Sanskrit to be recited
by the chief priest),
2. Yajurva Veda (containing formulas to be recited by the
officiating priest),
3. Sama Veda (containing verses to be chanted by seers)
and
4. Atharva Veda (containing a collection of spells and
incantations, stories, predictions, apotropaic charms
and some speculative hymns).
Each Veda has three parts viz.
1. Sanhita (which consists mainly of the hymns),
2. Brahmin (tells us our duties and means of performing
them) and
3. Upanishad (containing the essence of these duties).
The shrutis include the Vedas along with their
components. The brahmanas are like the apendices to
the Vedas. Vedas primarily contain theories about
sacrifices, rituals, and customs.
Some people believe that Vedas contain no specific
laws, while some believe that the laws have to be
inferred from the complete text of the Vedas.
Vedas do refer to certain rights and duties, forms of
marriage, requirement of a son, exclusion of women
from inheritance, and partition but these are not very
clearcut laws.
During the vedic period, the society was divided into
varns and life was divided into ashramas. The concept
of karma came into existence during this time. A
person will get rewarded as per his karma. He can
attain salvation through "knowledge". During this
period the varna system became quite strong.
The vedic period is assumed to be between 4000 to
1000 BC. During this time, several pre-smriti sutras
and gathas were composed. However, not much is
known about them today. It is believed that various
 rishis and munis incorporated local customs into
Dharma and thus multiple "shakhas" came into
existence.
(ii) Smritis-
The word Smriti is derived from the root “smri”
meaning ‘to remember’. Traditionally, Smritis contain
those portions of the Shrutis which the sages forgot
in their original form and the idea whereby they wrote
in their own language with the help of their memory.
Thus, the basis of the Smritis is Shrutis but they are
human works.
There are two kinds of Smritis viz. Dharmasutras and
Dharmashastras. Their subject matter is almost the
same. The difference is that the Dharmasutras are
written in prose, in short maxims (Sutras) and the
Dharmashastras are composed in poetry (Shlokas).
However, occasionally, we find Shlokas in
Dharmasutras and Sutras in the Dharmashastras. In a
narrow sense, the word Smriti is used to denote the
poetical Dharmashastras.
The number of Smriti writers is almost impossible to
determine but some of the noted Smriti writers
enumerated by Yajnavalkya (sage from Mithila and a
major figure in the Upanishads) are Manu, Atri,
Vishnu, Harita, Yajnavalkya, Yama, Katyayana,
Brihaspati, Parashar, Vyas, Shankh, Daksha,
Gautama, Shatatapa, Vasishtha, etc.
The rules laid down in Smritis can be divided into
three categories viz.
1. Achar (relating to morality),
 2. Vyavahar (signifying procedural and substantive
rules which the King or the State applied for settling
disputes in the adjudication of justice) and
3. Prayaschit (signifying the penal provision for
commission of a wrong).
Smrit means "what is remembered". With smrutis, a
systematic study and teaching of Vedas started. Many
sages, from time to time, have written down the
concepts given in Vedas. So it can be said that
Smrutis are a written memoir of the knowledge of the
sages. Immediately after the Vedic period, a need for
the regulation of the society arose. Thus, the study of
vedas and the incorporation of local culture and
customs became important. It is believed that many
smrutis were composed in this period and some were
reduced into writing, however, not all are known.
The smrutis can be divided into two –
I. Early smritis (Dharmasutras) and
II. Later smritis (Dharmashastras).
Dharmasutras:
The Dharmansutras were written during 800 to 200
BC. They were mostly written in prose form but also
contain verses. It is clear that they were meant to be
training manuals of sages for teaching students. They
incorporate the teachings of Vedas with local
customs. They generally bear the names of their
authors and sometime also indicate the shakhas to
which they belong. Some of the important sages
whose dharmasutras are known are: Gautama,
Baudhayan, Apastamba, Harita, Vashistha, and
Vishnu.
 They explain the duties of men in various relationship.
They do not pretend to be anything other than the
work of mortals based on the teachings of Vedas, and
the legal decisions given by those who were
acquainted with Vedas and local customs.
Gautama - He belonged to Samveda school and deals
exclusively with legal and religious matter. He talks
about inheritance, partition, and stridhan.
Baudhayan - He belonged to the Krishna Yajurved
school and was probably from Andhra Pradesh. He
talks about marriage, sonship, and inheritance. He
also refers to various customs of his region such as
marriage to maternal uncle's daughter.
Apastamba - His sutra is most preserved. He also
belonged to Krishna Yajurveda school from Andhra
Pradesh. His language is very clear and forceful. He
rejected prajapatya marriage.
Vashistha - He was from North India and followed the
Rigveda school. He recognized remarriage of virgin
widows.
Dharmashastras:
Dharmashastras were mostly in metrical verses and
were based of Dharmasutras. However, they were a lot
more systematic and clear. They dealt with the subject
matter in three parts

 Aachara : This includes the theories of religious

observances,
 Vyavahar : This includes the civil law.
 Prayaschitta : This deals with penance and expiation.
 The Hindu Marriage Act, 1955,
 The Hindu Adoptions and Maintenance Act, 1956,
1. The Hindu Succession Act, 1956,
 The Hindu Minority and Guardianship Act, 1956, etc.
Modern Sources of Hindu Law:
While early smrutis deal mainly with Aachara and
Prayaschitta, later smrutis mainly dealt with Vyavahar.
Out of many dharmashastras, three are most
important.
Manusmriti:
This is the earliest and most important of all. It is not
only defined the way of life in India but is also well
known in Java, Bali, and Sumatra. The name of the
real author is not known because the author has
written it under the mythical name of Manu, who is
considered to the first human. This was probably
done to increase its importance due to divine origin.
Manusmriti compiles all the laws that were scattered
in pre-smriti sutras and gathas. He was a brahman
protagonist and was particularly harsh on women and
sudras. He holds local customs to be most important.
He directs the king to obey the customs but tries to
cloak the king with divinity. He gives importance to
the principle of 'danda' which forces everybody to
follow the law. Manusmriti was composed in 200 BC.
There have been several commentaries on this smruti.
The main ones are: Kalluka's Manavarthmuktavali,
Meghthithi's Manubhashya, and Govindraja's
Manutika.
Yajnavalkya Smriti:
Though written after Manusmruti, this is a very
important smruti. Its language is very direct and clear.
It is also a lot more logical. He also gives a lot of
importance to customs but hold the king to be below
the law. He considers law to be the king of kings and
the king to be only an enforcer of the law. He did not
deal much with religion and morality but mostly with
civil law. It includes most of the points given in
Manusmriti but also differs on many points such as
position of women and sudras. He was more liberal
than Manu. This was composed in around 0 BC.
Vijnaneshwar's commentary 'Mitakshara' on this
smruti, is the most important legal treatise followed
almost everywhere in India except in West Bengal and
Orissa.
Narada Smriti:
Narada was from Nepal and this smriti is well
preserved and its complete text is available. This is
the only smriti that does not deal with religion and
morality at all but concentrates only on civil law. This
is very logical and precise. In general, it is based on
Manusmriti and Yajnavalkya smriti but differ on many
points due to changes in social structure. He also
gives a lot of importance to customs. This was
composed in 200 AD.
(iii) Digests and Commentaries-
After Shrutis came the era of commentators and
digests. Commentaries (Tika or Bhashya) and Digests
(Nibandhs) covered a period of more than thousand
years from 7th century to 1800 A.D. In the first part of
the period most of the commentaries were written on
the Smritis but in the later period the works were in
the nature of digests containing a synthesis of the
various Smritis and explaining and reconciling the
various contradictions.
The evolution of the different schools of Hindu law
has been possible on account of the different
commentaries that were written by various authorities.
The original source of Hindu law was the same for all
Hindus. But schools of Hindu law arose as the people
chose to adhere to one or the other school for
different reasons.
After 200 AD, most of the work was done only on the
existing material given in Smrtis. The work done to
explain a particular smriti is called a commentary.
Commentaries were composed in the period
immediately after 200 AD. Digests were mainly written
after that and incorporated and explained material
from all the smritis.
As noted ealier, some of the commentaries were,
manubhashya, manutika, and mitakshara. While the
most important digest is Jimutvahan's Dayabhag that
is applicable in the Bengal and Orissa area.
Mitakshara literally means 'New Word' and is
paramount source of law in all of India. It is also
considered important in Bengal and orissa where it
relents only where it differs from dayabhaga. It is a
very exhaustive treaties of law and incorporates and
irons out contradicts existing in smritis.
The Dayabhaga and Mitakshara are the two major
schools of Hindu law. The Dayabhaga School of law is
 based on the commentaries of Jimutvahana (author of
Dayabhaga which is the digest of all Codes) and the
Mitakshara is based on the commentaries written by
Vijnaneswar on the Code of Yajnavalkya.
The basic objective of these texts was to gather the
scattered material available in preceeding texts and
present a unified view for the benefit of the society.
Thus, digests were very logical and to the point in
their approach. Various digests have been composed
from 700 to 1700 AD.
(iv) Custom-
Custom is a principle source and its position is next
to the Shrutis and Smritis but usage of custom
prevails over the Smritis. It is superior to written law.
Custom is regarded as the third source of Hindu law.
From the earliest period custom (‘achara’) is regarded
as the highest ‘dharma’. As defined by the Judicial
Committee custom signifies a rule which in a
particular family or in a particular class or district has
from long usage obtained the force of law.
Most of the Hindu law is based on customs and
practices followed by the people all across the
country. Even smrutis have given importance to
customs. They have held customs as transcendent
law and have advised the Kings to give decisions
based on customs after due religious consideration.
Customs are of four types:
1. Local Customs- These are the customs that are
followed in a given geographical area. In the case of
Subbane vs Nawab, Privy Council observed that a
custom gets it force due to the fact that due to its
 observation for a long time in a locality, it has
obtained the force of law.
2. Family Customs- These are the customs that are
followed by a family from a long time. These are
applicable to families where ever they live. They can
be more easily abandoned that other customs. In the
case of Soorendranath vs Heeramonie and Bikal vs
Manjura, Privy Council observed that customs
followed by a family have long been recognized as
Hindu law.
3. Caste and Community Customs- These are the
customs that are followed by a particular cast or
community. It is binding on the members of that
community or caste. By far, this is one of the most
important source of laws. For example, most of the
law in Punjab belongs to this type. Custom to marry
brother's widow among certain community is also of
this type.
4. Guild Customs - These are the customs that are
followed by traders.
Requirements for a valid custom:
1. Ancient Ideally, a custom is valid if it has been
followed from hundreds of years. There is no
definition of ancientness, however, 40yrs has been
determined to be a ancient enough. A custom cannot
come into existence by agreement. It has to be
existing from long before. Thus, a new custom cannot
be recognized. Therefore, a new form of Hindu
marriage was not recognized in Tamil Nadu. In the
case of Rajothi vs Selliah, a Self Respecter’s Cult
started a movement under which traditional
 ceremonies were substituted with simple ceremonies
for marriage that did not involve Shastric rites. HC
held that in modern times, no one is free to create a
law or custom, since that is a function of legislature.
2. Continuous: It is important that the custom is being
followed continuously and has not been abandoned.
Thus, a custom may be 400 yrs old but once
abandoned, it cannot be revived.
3. Certain: The custom should be very clear in terms of
what it entails. Any amount of vagueness will cause
confusion and thus the custom will be invalid. The
one alleging a custom must prove exactly what it is.
4. Reasonable: There must be some reasonableness and
fairness in the custom. Though what is reasonable
depends on the current time and social values.
5. Not against morality: It should not be morally wrong
or repugnant. For example, a custom to marry one's
granddaughter has been held invalid. In the case of
Chitty vs. Chitty 1894, a custom that permits divorce
by mutual consent and by payment of expenses of
marriage by one party to another was held to be not
immoral. In the case of Gopikrishna vs. Mst Jagoo
1936 a custom that dissolves the marriage and
permits a wife to remarry upon abandonment and
desertion of husband was held to be not immoral.
6. Not against public policy: If a custom is against the
general good of the society, it is held invalid. For
example, adoption of girl child by nautch girls has
been held invalid. In the case of Mathur vs Esa, a
custom among dancing women permitting them to
 adopt one or more girls was held to be void because it
was against public policy.
7. Not against any law: If a custom is against any
statutory law, it is invalid. Codification of Hindu law
has abrogated most of the customs except the ones
that are expressly saved. In the case of Prakash vs
Parmeshwari, it was held that law mean statutory law.
Proof of Custom:
The burden of proving a custom is on the person who
alleges it. Usually, customs are proved by instances.
In the case of Prakash vs Parmeshwari, it was held
that one instance does not prove a custom. However,
in the case of Ujagar vs Jeo, it was held that if a
custom has been brought to notice of the court
repeated, no further proof is required. Existence of a
custom can also be proved through documentary
evidence such as in Riwaz-i-am. Several treaties exist
that detail customary laws of Punjab.
Usage and Custom:
The term custom and usage is commonly used in
commercial law, but "custom" and "usage" can be
distinguished. A usage is a repetition of acts whereas
custom is the law or general rule that arises from such
repetition.
A usage may exist without a custom, but a custom
cannot arise without a usage accompanying it or
preceding it. Usage derives its authority from the
assent of the parties to a transaction and is applicable
only to consensual arrangements. Custom derives its
authority from its adoption into the law and is binding
regardless of any acts of assent by the parties. In
 modern law, however, the two principles are often
merged into one by the courts.
Hindu law has been greatly influenced by the British
rule. While it might seem that the British brought with
them the modern concepts of equity and justice, these
concepts existed even in dharamashastras albeit in a
different form. Narada and Katyayana have mentioned
the importance of dharma (righteousness) in
delivering justice. However, we did not have a practice
of recording the cases and judgments delivered. So it
was not possible to apply stare decisis. This process
started from the British rule.
The following are the modern sources of Hindu law:
1. Equity, Justice, and Good conscience: Equity means
fairness in dealing. Modern judicial systems greatly
rely on being impartial. True justice can only be
delivered through equity and good conscience. In a
situation where no rule is given, a sense of
'reasonableness' must prevail.
Occasionally it might happen that a dispute comes
before a Court which cannot be settled by the
application of any existing rule in any of the sources
available. Such a situation may be rare but it is
possible because not every kind of fact situation
which arises can have a corresponding law governing
it.
The Courts cannot refuse to the settle the dispute in
the absence of law and they are under an obligation to
decide such a case also. For determining such cases,
the Courts rely upon the basic values, norms and
standards of fair play and propriety.
 In terminology, this is known as principles of justice,
equity and good conscience. They may also be termed
as Natural law. This principle in our country has
enjoyed the status of a source of law since the 18th
century when the British administration made it clear
that in the absence of a rule, the above principle shall
be applied.
According to Gautama, in such situation, the decision
should be given that is acceptable to at least ten
people who are knowledgeable in shastras.
Yagyavalkya has said that where ever there are
conflicting rules, the decision must be based on
'Nyaya'. This principle has been followed by the Privy
Council while deciding cases.
2. Precedent: The doctrine of stare decisis started in
India from the British rule. All cases are now recorded
and new cases are decided based on existing case
laws.
After the establishment of British rule, the hierarchy of
Courts was established. The doctrine of precedent
based on the principle of treating like cases alike was
established. Today, the judgment of SC is binding on
all courts across India and the judgment of HC is
binding on all courts in that state, except where they
have been modified or altered by the Supreme Court
whose decisions are binding on all the Courts except
for itself.
3. Legislation: Legislations are Acts of Parliament
which have been playing a profound role in the
formation of Hindu law. After India achieved
independence, some important aspects of Hindu Law
have been codified.
Few examples of important Statutes are:
After codification, any point dealt with by the codified
law is final. The enactment overrides all prior law,
whether based on custom or otherwise unless an
express saving is provided for in the enactment itself.
In matters not specifically covered by the codified law,
the old textual law contains to have application.
In modern society, this is the only way to bring in new
laws. The parliament, in accordance with the needs
society, constitutes new laws. For example, a new way
of performing Hindu marriages in Tamil Nadu that got
rid of rituals and priests was rejected by the SC on the
basis that new customs cannot be invented. However,
TN later passed an act that recognized these
marriages.
Also, most of the Hindu laws have now been codified
as mentioned in the beginning.