A INDU L é «Hindu Law and point out i ure! Q. 6. Mention the so} / the relative importance of eac’ Ans. Sources of Hindu Fabel 4 classify the various sources of Hin \ c 2 ] _it would be convenient{g der the following two ae ‘Ancient Sources.—Under this head fall the following four . Ancie }" sources : ; : ; k (i) Srutis; (ii) Smrities; (iii) Purana; (iv) Digests and Commentaries and (v) Custom. 2, Modern Sources.—Under sources : (i) Legislation; (ii) Judicial D Good conscience. The Srutis—Mayne has pointed out, "The Sruti (that which has been heard) is in theory the primary and paramount source of Hindu Law and is believed to be the language of divine revelation." The word ‘Srutis' literally means what is heard, i. e., revealed to inspired sages. It comprises of the four Vedas, the six Vedangas and the eighteen Upanishads dealing chiefly. with religious rites and means of attaining true knowledge or Moksa or salvation. Vedas are ultimate traditional source of law. Vedas are four in number— Rigveda, Yajurveda, Samveda and Atharv Veda. Of these Vedas, Rigveda is oldest literature. Vedas are supposed to contain the direct words of the revelation, and are th : ‘ a have now little practical value. usheld to be infallible. The Srus Th Genrer = es een oo a literally means "what is although not in the exact lan 0 be based on lost texts of the Vedas: this head fall the following three ecisions; (iii) Equity, Justice andNATURE AND ORIGIN if Yajnvalkya gives a list of twenty law Vishnu, Harita, Yajnavalkya, Ushana, Angira Samvarta, Katyayana, Brihaspati, Parashara, Daksha, Gauiama, Satatapa and Vasist commentator, Vijnaneshwara, this list is n: illustrative. The Smritis are of two kinds : givers—Manu, Atri, » Yama, Apastamba, Vyasa, Sankha, Likhita, ha, According to the ot exhaustive, it js only (a) In prose style.—Those in prose are called ‘Dharama Sutras’ and are anterior to those in verse. The Principal authors thereof are Gautama, Baudhayana, Apastamba, Vasishtha. Parashara and others. (b) In poetry style—Those in verse are called the 'Dharama Shastras'. The most eminent among the authors thereof are Manu, Yajnavalkya, Narada, Vishnu, Devala, Vrihaspati, Katyayana and Vyasa. The Puranas.—Mitra Misra in his Commentary on the Yajnavalkya Smriti says that Puranas are not authoritative on law. They are also occasionally treated as authoritative. As had been observed in Ganga Sahai v. Lekhraj Singh : "Somewhz2re in the order of precedence either between the Srutis and Smritis or most probably, after them, come the Puranas, which the celebrated author Colebrooke states are reckoned as a supplement in the scripture, and as such, constitute a fifth Veda." Digests and commentaries.—The Nibandhas or Commentaries though professing to interpret the Smritis have considerably modified the old law in.accordance with the views of the writers and changes of the times. At present their authority is higher than any other Sanskrit work. Accordingly "in the event of conflict between the ancient text-writers and the commentators the opinion of the latter must be accepted". [Atma Ram v. Baji Rao, 62 TA 139]. The reason is that although the commentators may have been wrong in their interpretation of original text, their opinion should be enforced as having the sanction of usage. The principal Commentaries are : (1) Dayabhaga, by Jimutavahana; (2) Mitakshara, a Commentary on Yajnavalkya, by Vijnaneshwara; (3) Viramitrodaya, by Mitra Misra; (4) Vivada Chintamani, by. Vachaspati Misra; (5) Vivada Ratnakara, by Chandeshwara;12 ayakramasangraha, by g. b Daya i ri y Raghunandand CO anand Bhatta; 9) Parasarg ti Chandrika by Madhavacharya; and (19) ary on ae Nilkantha. ; , jmary sources of Hindu Law there ‘ of Hindu Law are ; (a) her sources a al decisions, (d) Justice, equity (6) Dayatattwa, by Krishna; (8) Smr Madhviya, a ¢ mment Vyavahara Mayukha, b; Other Sources.—Despite pr are some secondary sources. The eh Custom, (b) Legislation, (c) Judici and good conscience. (a) Custom. or in a particular class of perso’ long usage, obtained the force of 73 eee nich in a particular family ns or ina particular locality, has from Jaw. "Custom is a ru’ which ina particular family or in a particular district has fron long usages obtained the force of law. It must be ancient, certain at.d reasonable and being in the derogation of general rules of law, must be construed strictly. The obligatory character of customs 1s so much recognized by the ancient text-writers that every custom 1S supposed to be based on a lost text of the revelations. The modern authorities are equally emphatic in their acceptance of the binding force of customs. For instance, the Privy Council have remarked : "Clear proof of usage will outweigh the written text of the law" [Ramanand's case, A.LLR. 1942 All. 100]. This is said that Smritis and ears sate erect paved upon customary laws. On matters not coveret e Smritis and comm i ) law laid aad in them. Bee Supplements the _—Custom is a rule wh According to Section 3 (a) of the Hindu Marri : Act, 1955 the expression ‘custom’ and ‘usage’ signif Benes bee ennuusly and uniformly ed tone time, hes conuete 5 spree os Hay among Hindus in any local area, tribe, not amet ei i ays Provided that the rule is certain and in the case of a rule Sept a i Beare viced further i fl . Y to a family i darn tno ata gl Be Stemant ile Kuju DC For custom to have the colsae ane the Supreme Court observed: must be ancient, certain and Nea ceaee Or law, it is necessary that it (b) Legislation. —During the B enactments have been made fbn ae Tegime in India, certai ime to time modifying anNATURE AND ORIGIN 13 supplementing the original Hindu Law, €.g., the Child Man 1 Restraint Act, 1929, the Hindu Gains of Learning Act, 1939 ..4°e° Hindu Women's Right to Property Act, 1937 a pat Wace er endence four major legislations have been pass ¢ pa ae which have made vital and dynamic Chane ie ann marriage, adoption, maintenance, guardianship and succession, aie (c) Judicial Decisions.—Judicial decisions are regarded as precedents for future cases. A precedent is not merely an evidence of law but a source of it and the courts of law are bound to follow the precedents. Strictly speaking, legislation and judicial decisions are not sources; they have modified and supplemented the pure Hindu Law. It is not the function of the Courts to formulate the laws, but they are to interpret and ascertain the laws. Strictly speaking legislation and judicial decisions are not sources; they have modified and supplemented the pure Hindu Law, but now they have emerged as important sources of Hindu Law. (d) Equity, justice and good conscience.—In India the origin of equity is traced to the Hindu period when jurists explained the old laws and gave new rules of interpretation and equitable solutions in cases of a conflict between the rules of various laws. In case of a conflict between the rule of Smriti that one should be followed which is based on reason, justice and principles of equity. In view of the above observations and its practical application it will not be incorrect to mention equity, justice and good conscience as the next source of Hindu Law. Q. 7. Define custom and enumerate the various kinds of customs. What are essentials of.a valid custom under Hindu Law ? ? Ans. Custom—Defined.—A custom is a rule which in a particular family or in a particular district has from long usage Obtained the force of law. The Judicial Committee explained custom thus : "Custom is a rule which in a particular family or in particular district has from long usage obtained the force of law. It must be ancient, certain and reasonable and being in the derogation of general Tules of law, must be construed strictly.” _ Hindu sages have recognised good customs binding on he Hindus. Manu says that "immemorial custom is transcendent law".ere he 14 Qs. AND ANS: ON ; distinct females m whereby 4 les s.—A custo’ calities In Southern aaa Illustration pase ite allowed to inherit, a custom in Smaternal uncle's daughter are wa in can marry his scounized by la Me whereby a Brahm! ustom that has been recognized by law, of the examples ofac : divisions of the Kinds of Customs- are three CUston, generally recognized by Hin (1) Local customs; (2) Class custo! These customs are confined to some State or, district and are binding on alj the ticular locality which may be the whole country ven a village. se are customs of a Caste, or of g sect or of the followers of a particular profession or occupation, such as, agriculture, trade, mechanical art and the like. (3) Family Customs.—These are customs confined to a particular family, such as, those governing succession to an impartible Raj. Similar to them are the usages of succession to Maths or religious foundations. Essentials of Customs.—In order that the cust - om ma valid, it must be : ea (1) Ancient. (2) Invariable and contin! i mie $ uous. (3) E clear and unambiguous evidence. (4) Reasonabl fe established ty morality or public policy. (6) Not forbidde * enue enactm 7 ; _ en Dy any express : as of ihe Legislature, and (7) Obligatory. p ncient.—Asahaya whi : “Immemorial usage of every oe ile commenting on a text says: generation to generation, can feapbe Beep vanced down from the Shastras. The custom must be i a Overruled on the strength of by common consent it has been eee ding\co to show the Particular locality or class of aya. the ee 2 governing may not be of immemorial eres: as the case may be, although it (2) Invarial : has been fant deae continuous.—When a particular custom OF a period, it would come to an end. Its immaterial whether the di i Ce results from accidental cau 1 rethe scontinuan: or from intention of the Persons affected b : ae ry it. —There du Law. They are -— ms; (3) Family customs, (1) Local customs.— particular country, inhabitants of a part or a State or a district, town or € (2) Class Customs.—The:en eee * ENED ORIGIN 15 (3) Clear and unambiguous eviden custom must be clear and unambiguous The testi experienced and competent persons that certain peony of accordance with a particular usage are held by them tiie done in valid, is admissible in evidence, Provided "that a © legal and supported by examples of other acts done in Reeaanees are usage in question. ‘ance with the ‘ce.—The evidence of (4) Reasonable.—The custom which is recognised b must be re It cannot be said that a custom is Pind user reason, though an unreasonable custom i i eno pact Ae ‘om is void for no reason would (5) Not opposed to morality or public policy.—Customs which are immoral or opposed to public Policy will not be enforced. Whether a custom is immoral must be tested by the sense of the community as.a whole and not of a section thereof. [Dawansya y. Mathusi, 44 Mad. 329}. Though a custom may be clearly established it cannot be enforced if it is immoral or is against public policy. [Balusami v. Bal Krishna, A. 1. R. 1957 Mad. 97]. (6) Not opposed to any law.—-In order that a custom is treated as valid it is furthermore essential that it must not be forbidden by any express enactment of the Legislature. (7) Obligatory.—A custom to be valid must be obligatory to all those who are subject to it. Onus of proof.—The burden of proof as to the existence of a custom rests on the persons who set up a custom contrary to law. It is well-established principle of Hindu Law that clear proof of usage will outweigh the written text of law. The rule that clear proof of usage will outweigh the written text of the law is based on reasoh, The Smritis themselves lay down that customs must be enforced. SCHOOLS OF HINDU LAW Q. 8, Enumerate the various Schools of Hindu Law oe explain how did they arise ? Ans. Two principal Schools—Mitakshara and Dayabhaga.—The two main schools of Hindu Law are the