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Sources Of The Hindu Personal Law
Hindu law as we know it is a collection of the laws relating to the personal laws of the Hindus pertaining to marriage, adoption, inheritance, etc and the source of such law is the ancient literature and texts that have been passed on through generations. The Hindu personal law contains rules and regulations with regard to the various sets of values that have been passed on as customs and traditions and have been based on the core principles of dharma.
Hindu law when we denote to be the legal system that contains not just the procedural laws but the substantial laws as well which are applicable to the Hindus. The main source of Hindu law is the Dharamshastras and along with the Dharam Shastras, there are many other sources to the Hindu Law as we know it today.
The sources of the Hindu law can be divided into the ancient sources and the modern sources, the ancient sources being the smritis, shrutis, and customs and the modern sources being the principles of justice, equity, and good conscience as well as legal precedents.
The ANCIENT SOURCES of the Hindu Law :
1) Shrutis: The word Shruti translates to “what has been heard” and is one of the most ancient sources of the Hindu law and it contains the wisdom in form of revelations which had been made to the sages and is passed on through the generations with the use of words and Vedas themselves are a form of a collection made out of the shrutis. There are four Vedas – Rig Veda, Sama Veda, Yajur Veda, Atharva Veda, and these Vedas form a great source of the Hindu law themselves.
2) Smritis: Smritis are what was remembered and the memories which have been preserved into texts and they were thus organized in a very organized manner. The Smritis are of two types: Dharam Sutra and Dharam Shastra, the former consists of famous ones like Gautam, Buddhyan, Harit, Vishnu, etc. The famous Dharam Shastras are the Manu Smriti, Yajnavalkya Smriti, Narad Smriti, etc. The Narad Smriti has a detailed description of a system of judiciary, courts, and justice.
3) Digests and Commentaries: The attempts to make the laws more explanatory and to write down about ancient shrutis and smritis and to resolve the conflict behind the texts was the tradition that continued for a long time. The texts were then compiled into digests and therefore commentaries were also made on these digests and this tradition led to the development of the different schools of law like the Mitakshara and Dayabhaga School of law.
4) Customs: The customs also form an important source of the Hindu law and they consist of all those practices that have been followed by the Hindus over the generations and these even take precedence over the written texts and play an important role in the Hindu society. The customs are of three types’ Local customs that are followed in a particular region or local area, class customs which are followed by a specific class of the society and the family customs.
The MODERN SOURCES of the Hindu Law are:
1) Justice, Equity, and Good Conscience: This concept of the law has its source in the natural law and this principle implies that wherever there is a lacuna in the law or space which has not been filled by law then at that place this principle guides the court of law.
2) Legislations: The laws that have been enacted by the Parliament and the state legislature also form an important source of the Modern Hindu law and codifies the principles in a systematic form, for example, The Hindu Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, etc.
3) Precedents: The cases that are decided by the Court of law in India like the decisions by the Supreme Court, The High Court acts as a precedent for the subordinate judiciary and acts as the law of the land.The verdicts and the law points and the directions of the Court act as binding on the lower judiciary.
The sources of the Hindu Law have come a long way since the codification of the laws in the 1950s and many necessary amendments have been made from time to time which has helped to bring in important changes.
