Sources of Hindu law

• Source means the quarter from which we seek our knowledge of law. Source of law may mean material source of law is evolved present day legislation and judicial decision are the material source of law.
• Ancient time law was developed by custom and even present day source of law is custom
• Ancient Hindu legal system recognised four source of law – Shruti, Smriti, Commentaries and Digest and custom

A) Ancient sources

i) Shruti

SHRU - means- heard direct from god, shruti include 4 Veda – vid means knowledge 4 Veda include – Rigveda, Yajurveda, Samaveda and Atharvaveda this 4 Veda are foundation head of Hindu religion and law

• Rigveda- oldest of them, contains 1028 hymens arranged into 10 group, talks about spiritual learning more hence does not help as source of law
• Yajurveda- contains direction for the priest grouped into 2 i) Black Yaju ii) White Yaju
• Samaveda- Also know as Chantveda. These are intended to chant at particular sacrifice in which juice of soma plant was principal offering.
• Athravaveda- consist of incarnation, spelling, charm and exorcism

ii) Smruti

Smruti means - what is remembered, represent what was recorded by sages in their own word of what they had heard from deity early smriti dharma sutras.

Oldest smruti is Manusmruti, consist of 2694 sholka, code deals with subjects like debts, pledges, sales, deposit, master and servant relationship, adultery, partition and inheritance.

iii) Digest and Commentaries

Several Digest and commentaries were written on smriti on Manusmriti

• Medhalithi wrote manubhashya
• Govinda Raja wrote Manutika
• Kulluka Bhatta wrote Manavota Muktaval

Some commentaries were also written on Yajnavalykya Smriti

• Vijneshwar wrote Mitakshara
• Vijna Rupa wrote Balkrida

Commentaries means explanations of bare provision beyond just wordy meaning.

A commentary wrote by vijneshwar on yajnavalkya smriti named mitakshara was recognised by all except Bengal because in Bengal commentary name dayabhagha already exsist also because mitakshara denied equal rights to women

iv) Custom

Practice followed by generation is called custom, Custom is a prominent source of law. Before legal system society was Governed by custom.

Essentials of Valid Custom

• 1) Antiquity
• 2) Certainity
• 3) Reasonablness
• 4) Continuance

Antiquity
Custom should be ancient.

Certainity
Evidence must be established clear usage and set up. In the Ramalakshmi v. sivnath case when evidence is conflicting a uniform custom is not established.

Reasonableness
Unreasonableness custom which are contrary to public policy are rejected by court.

Continuance
Custom can be valid only if they have been practiced on regular interval

B) Modern sources

i) Justice, Equity and Good Conscience

Common law tradition of applying the principle of Justice, Equity and Good conscience when the law is silent on given point. It was also applied by Britishers in their administration of justice in India.

ii) Precedent

Binding nature of previous judicial decision on a subsequent similar case is of modern origin came into vogue during British period. Lordship of privacy council evolved the principal and rules on varies complex subject of Hindu law.

Principal od stare decises is applied by the Indian court. Supreme court are binding upon all court except upon itself and high court on all its subordinate courts

iii) Legislation

Legislation is source of modern Hindu law, During British period only few legislation were passed touching personal law of Hindu. British had policy of Noninterference in matter of personal status of native Indian.

In 1944 a committee under chairmanship of B.N Rao was constituted which had evolved a Hindu code but failed due to opposition bill could not be passed, However during 1955-56 Four major act governing the Hindus were passed they are:

• Hindu Marriage Act,1955
• Hindu Adoption and Maintenance Act,1956
• Hindu Minority and Guardianship Act,1956
• Hindu Succession Act,1956