SOURCES OF HINDU LAW

Hindu law is one of the oldest legal systems in the world, with origins that go back thousands of years. It has been influenced by a wide range of historical writings, traditions, and contemporary legislative changes.

Historical Context and Sources of Hindu Law

Hindu law, as it has historically been applied to Sikhs, Buddhists, Jains, and Hindus in British India, comes from both ancient and contemporary sources. As these sources have evolved to meet the needs of a varied and dynamic society, their significance has also altered over time.

Ancient Sources

Shruti (Vedas):

• Description: “Shruti,” which translates to “what is heard,” refers to the most revered books in Hinduism, such as the Brahmanas, Aranyakas, Upanishads, and the four Vedas (Rigveda, Yajurveda, Samaveda, and Atharvaveda). These writings are regarded as divine insights that encapsulate philosophical and spiritual ideas.
• Historical Role: As the supreme religious writings, they establish the spiritual doctrine and rules for Hindu life, serving as the cornerstone of Hindu law. It is said that they possess the wisdom required for incarnation and salvation, and they are admired for their purity. 
• Legal Relevance: Shruti, although historically authoritative, is less directly applicable in contemporary legal circumstances because of its abstract and spiritual nature, emphasising ethics and rituals over precise legal regulations. Although courts rarely use them directly, they may do so for cultural context.

Smritis:

• Description: Among the “smritis,” which translate to “what is remembered,” are writings by sages, including the Dharma Shastras and Dharma Sutras (e.g., Manusmriti, Yajnavalkya Smriti, Narada Smriti, Parashar Smriti). They are part of the Dharmashastra literature and provide comprehensive guidelines for behaviour, inheritance, family law, and religious obligations.
• Historical Role: Smritis provide particular legal maxims and concepts that were generally adhered to in ancient and mediaeval India, making them more pragmatic than Shruti. They provided the foundation for many aspects of traditional Hindu law, such as those pertaining to property, marriage, and adoption.
• Legal Relevance: Legislation has more authority than Smritis in the modern era. Although courts interpret and modify them in light of current social and legal circumstances, codification has reduced their direct application. The Manusmriti, for example, is not immediately enforced and is frequently criticised for its patriarchal ideas, despite its historical significance.

Customs and Usages:

• Description: Hindu groups follow local customs and traditions, such as particular marriage rites, inheritance patterns, or family government. According to rulings like Balwant Rao v. Baji Rao (1921), customs must be ancient, certain, rational, and in line with morals and public policy in order to be deemed legally valid
• Historical Role: Hindu law has been heavily influenced by customs, particularly in places where written sources were either silent or geographically varied. They had a special influence on the development of personal laws like succession and marriage.
• Legal Relevance: In the current day, customs are still somewhat significant and are regulated by laws such as Section 3(a) of the Hindu Marriage Act of 1955. They cannot, however, override laws, act immorally, or go against public policy. The Prohibition of Child Marriage Act, 2006, for instance, forbids customary practices like child marriage, however implementation varies, particularly in rural regions.
• Commentaries and Digests (Nibandhas):
  • Description: These are scholarly interpretations of the Smritis by subsequent jurists who helped to construct the fundamental elements of Hindu institutions by systematising and elucidating the Smritis’ frequently contradictory norms.
  • Historical Role: Dayabhaga and Mitakshara, two commentaries that were influential in the development of schools of Hindu law, were found in Bengal and much of India, respectively. In the Smriti texts, they resolved discrepancies and offered thorough explanations. 
  • Legal Relevance: Despite not being directly utilised to create laws, these works have historical significance and still have an impact on how courts interpret the law today.   

Modern Sources

1. Legislation:
   • Description: codified laws passed by state legislatures and the Indian Parliament, include

The Hindu Marriage Act, 1955; 

The Hindu Succession Act, 1956;

The Hindu Adoptions and Maintenance Act, 1956; 

The Hindu Minority and Guardianship Act, 1956; and 

The Prohibition of Child Marriage Act, 2006. 

The Hindu code bills are the collective name for them.

• Historical Role: These laws were enacted after independence to codify and alter traditional Hindu law, addressing concerns including as succession rights, child marriage, and gender discrimination. Despite criticism from Hindu right-wing groups for altering traditions, they were put into place to align with modern principles of equality and nondiscrimination.
• Legal Relevance: Modern Hindu law is primarily derived from legislation, which establishes consistent guidelines that are applicable throughout India. In addition to introducing gender fairness, it has eliminated other illogical customs, such as the division of inheritance between male and female heirs. As an illustration of modern principles, the Hindu Succession (Amendment) Act, 2005, granted daughters equal rights over family property.

2. Judicial Decisions:
   • Description: Decisions rendered by courts that interpret Hindu law and settle disputes, especially those rendered by the Supreme Court and High Court. These rulings close the gaps left by outdated laws or texts and are founded on precedents. fill gaps left by ancient texts or legislation.
   • Historical Role: Hindu law has changed as a result of court rulings that have applied traditional ideas to contemporary situations, particularly when it comes to property rights, maintenance, and adoption. In seminal instances like Gurunath v. Kamalabai (1951), the Supreme Court ruled that in the absence of a particular statute, judges might make decisions based on the values of justice, equity, and moral conscience.
   • Legal Relevance: In order to ensure that Hindu law keeps up with contemporary changes, judicial precedent is crucial. Cases such as Luhar Amritlal Nagji v. Doshi Jayantilal (1960), which highlighted the binding character of precedents, demonstrate that Supreme Court decisions are binding on all courts and High Court rulings bind state courts.
3. Justice, Equity, and Good Conscience:
   • Description: A concept that ensures justice and flexibility in court rulings when there is no explicit rule in old writings, laws, or customs.
   • Historical Role: This idea was previously used as a fallback for equitable justice in colonial courts when Anglo-Hindu law was enforced. 
   • Legal Relevance: Although it is still used as a supplemental source, its use has decreased in the modern day due to the comprehensive nature of legislation. The court used this technique to settle a dispute in Atmaram Abhimanji v. Bajirao Janrao (1935), for example, by consulting ancient writings.

Contemporary Challenges and Debates

Recent debates have highlighted the continuous conflicts between universalism and legal pluralism, which are reflected in the development of Hindu law. A universal civil code is required by Article 44 of the Indian Constitution, but its implementation is still up for controversy. Hindu right-wing organisations support it while denouncing separate Muslim family laws as being appeasement. The difficulty of striking a balance between tradition and contemporary reforms is highlighted by this discussion, particularly in regards to issues like gender equality and temple governance.

The Supreme Court’s recent decisions regarding daughters’ property rights and divorced women’s maintenance demonstrate the dynamic role that court decisions play in modifying Hindu law. Gender justice has been further strengthened by laws such as the Hindu Succession (Amendment) Act, 2005, which is in line with international human rights norms.