Q. Discuss the sources of Hindu Law.

Hindu Law
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.

Application of Hindu Law

A precise definition of Hinduism does not exist. Hence, it is impossible to define a
fixed criteria for determining who is a Hindu. So a negative definition of 'who is
not a Hindu' is used. Further, in this land, several religions have been born and they
they follow the same customs and practices. So it cannot be said that Hindu Law
can be applied only to people who are Hindus by religion. Due to these reasons, in
general, the following people are considered to be Hindu with respect to
application of Hindu Law. 

1. Hindu by Religion - A person who is Hindu, Jain, Bauddha, or Sikh by

religion. In Shastri v Muldas SC AIR 1961, SC has held that various sub
sects of Hindus such as Swaminarayan, Satsangis, Arya Samajis are also
Hindus by religion because they follow the same basic concept of Hindu
Philosophy. Converts and Reconverts are also Hindus. SC, in the case
of Peerumal v Poonuswami AIR 1971, has held that a person can be a
Hindu if after expressing the intention of becoming a Hindu, follows the
customs of the caste, tribe, or community, and the community accepts him.
In Mohandas vs Dewaswan board AIR 1975, Kerala HC has held that a
mere declaration and actions are enough for becoming a Hindu.
2. Hindu by Birth - A person who is born of Hindu parents. If only one parent
is a Hindu, the person can be a Hindu if he/she has been raised as a
Hindu. In Sapna vs State of kerala, Kerala HC,  the son of Hindu father
and Christian mother was held to be a Christian.
3. Persons who are not Muslim, Christian, Jew, or Parsee by religion.
4. Persons who are not governed by any other religious law will be governed
by Hindu Law.
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.

Sources of Hindu Law

Sources of Hindu Law can be divided into two parts - Ancient and Modern.

1. 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:

A. 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.  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 clear cut 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. 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.

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.

B. Smruti
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 - Early smritis (Dharmasutras) and
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 Sam veda 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.

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 know 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 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.

C. Commentaries and Digest: 

After 200 AD, most the of work was done only on the existing material given in
Smrutis. 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
smruitis. 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 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.

D. Customs
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 the Jats 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.

Modern Sources
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.
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.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.

3. Legislation 
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.