Keith Mack
Hindu law is a set of personal laws that govern the social conditions of Hindus in India, such as marriage and divorce, adoption, inheritance, and family matters. It is one of the oldest and most prolific legal systems in the world, with a history of continuous development spanning over 2,500 years. The sources of Hindu law can be broadly categorized into ancient and modern sources. Ancient sources include the Vedas, Upanishads, and Smritis, while modern sources include judicial decisions, precedents, and legislation. These sources have shaped the legal and ethical landscape of Hindu society and contributed to the development of Hindu law as a personal law system in India.
| Characteristics | Values |
|---|---|
| Ancient texts | Dharmasutras, Dharmasastras, Vedas, Shrutis, Smritis, Nibandhas, Puranas, Manusmriti, Yajnavalkya Smriti, Mahabharata, Ramayana |
| Customs and traditions | Local customs, family customs, caste and community customs, guild customs |
| Legislation | Hindu Marriage Act, Hindu Succession Act, 1956 |
| Judicial precedents | Perumal v. Ponnuswami, Sastri v. Muldas, Soorendranath v. Heeramonie, Bikal v. Manjura, Vivek Narayan Sharma v. Union of India, Imran Pratapgadhi v. |
| Judicial decisions | Landmark judgements |
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What You'll Learn
Ancient texts and customs
Hinduism is a diverse system of thought with religious, philosophical, and social underpinnings that has guided society and human conduct in India for centuries. The sources of Hindu law are rooted in ancient texts, customs, and traditions, which form the basis for the legal structure governing diverse facets of Hindu personal law.
Ancient Texts
The ancient Hindu texts, or Shrutis, are in Sanskrit and are considered the most sacred scriptures, believed to be divinely revealed. They include the Vedas, the Upanishads, and the Vedangas, which are auxiliary disciplines related to the study of the Vedas. These texts emphasise dharma, or the obligation to do the right thing at all times.
The Smritis, on the other hand, are considered written memoirs of the knowledge of sages, believed to be divinely inspired. They include the Manusmriti, which is regarded as the most authoritative source of Hindu law, and the Yajnavalkya Smriti, which was more widely referred to by Hindu kingdoms in the medieval era. The Smritis also place a premium on customs, advising kings to judge based on customs and traditions.
The Sutras are another type of ancient text that are short and easy to memorise. The three types of Sutras are:
- Srauta Sutra (ritual-related)
- Grihya Sutra (domestic-related)
- Dharma Sutra (discipline-related)
The Dharma Shastra, based on the Dharmasutras, provides a more precise and systematic moral code of conduct. It deals with three important issues: Aachara, Vyavahar, and Prayaschitta.
Customs and Traditions
Customs and traditions are a fundamental aspect of Hindu law and are considered the third source of law, referred to as 'Achara' or the ultimate 'dharma'. These include local, family, caste and community, and guild customs.
Some notable customs and traditions in Hindu culture include:
- The Namaste greeting, which translates to 'I bow to the divine in you' and is a respectful way to say hello, goodbye, and thank you.
- The custom of guests being given supreme importance, as reflected in the Sanskrit verse 'Atithi Devo Bhava', which means 'the guest is equivalent to god'.
- The sacred nature of the cow in Hindu culture, depicted in mythology and considered sinful to slaughter or consume its beef.
- Fasts ('Vrats' or 'Upvas') are a key part of Indian culture, observed to give thanks to the gods and show sincerity and resolve.
- The importance of bathing or showering before entering a temple to cleanse oneself of negative thoughts and evil influences, as well as wearing conservative clothing and removing footwear.
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Judicial decisions and legislation
Judicial decisions are considered to be the most important ingredient of modern Hindu law sources. Judicial decisions are authoritative and binding. The doctrine of precedent is established and applied in cases with similar facts and circumstances to a case that has already been decided.
The term "precedent" means following the decision of a higher court by a lower court if the decision involves a common question of law. The Supreme Court verdicts are binding on all courts throughout India, while High Court judgments act as precedent over all courts within their respective states, unless they have been revised or amended by the Supreme Court.
In the case of Perumal v. Ponnuswami, the Supreme Court held that people could become Hindus if they show a willingness to do so and perform Hindu practices. In Sastri v. Muldas, the court ruled that Hindu sects such as the Swaminarayan, Arya Samaj, and Satsangis are also Hindus.
Legislation, also known as the codified form of law, is also considered a modern source of Hindu law. Legislation is enacted by the parliament and plays an essential role in expanding the concept of Hindu law. It is necessary to attain uniformity of law and abrogate inhumane and irrational practices. Examples of important legislation on Hindu law include the legal recognition of the remarriage of Hindu widows, the abolition of slavery in Hindu society, and the ban on the practice of female infanticide observed by certain Hindu communities.
The development of legal pluralism, or separate law based on an individual's religion, was controversial in India. The personal laws for Muslims remained Sharia-based, while the Anglo-Hindu law was enacted independently of any text on matters such as marriage, divorce, and inheritance. The Indian Christian Marriage Act of 1872 covered marriage, divorce, and alimony laws for Indian Christians of all denominations except Roman Catholics.
The period from 600 BCE to about the 12th century AD has been described as the heyday of Hindu law, with the proliferation of Sanskrit legal texts and commentaries. These texts, known as Dharmasutras and Dharmasastras, date from approximately 500 BCE to 500 CE. The Indian concept of dharma, for which there is no Western equivalent, is much broader than the Western concept of 'law'. It encompasses every rule that people are supposed to live by, and while the legal aspects are treated in isolation in the Dharmasastras, they remain inseparable from religious obligations.
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Local rituals and customs
Customs are of four types: local, family, caste and community, and guild customs. Local customs are the traditions that exist in a specific geographic location, varying from area to area and influenced by factors such as caste, geography, climate, and religious beliefs. For example, the traditions of a North Indian rural village may differ from those of a South Indian rural village. In the case of Subbane v. Nawab, the Privy Council stated that a custom has legal force because it has been observed for a long time in a particular location. Local customs must not be contrary to any existing laws and must be sustainable and reasonable to a great extent.
Family customs are traditions that have been passed down through generations in a family, applicable to families regardless of their location. They are less complicated to abandon than other practices. An example of family customs recognised as Hindu law is seen in the case of Soorendranath v. Heeramonie and Bikal v. Manjura.
Caste and community customs are traditions adhered to by a specific caste or community, binding the individuals within that group. This is considered one of the most important legal sources, with most of the law of Punjab falling under this category, as well as the custom of marrying a brother's widow in several societies.
Guild customs are the customs that traders follow.
Customs are regarded as the supreme law, and kings of ancient times based their decisions on customs after careful theological deliberation. Customs are considered valid in the absence of any statutory law, and if they are not against public policy or any existing law. They must also be continuous, certain, and reasonable.
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Family and community customs
Customs and traditions are a crucial source of Hindu law, with the Judicial Committee defining "custom" as a regulation that has gained legal force in a certain family, class, or district via lengthy usage. Customs are deeply rooted in Hindu law, with ancient texts like the Smritis emphasising their importance and advising kings to judge based on customs after careful theological deliberation.
Family Customs
Family customs are traditions passed down through generations within a family, regardless of their location. These customs are generally easier to abandon compared to other practices. They encompass rules related to adoption, marriage, descent, and property devolution within a family. An example of family customs being recognised as Hindu law is seen in the Privy Council cases of Soorendranath v. Heeramonie and Bikal v. Manjura.
Caste and Community Customs
Caste and community customs are specific to a particular caste or community and are binding on its members. This is considered one of the most important sources of Hindu law, with many laws in regions like Punjab being based on these customs. An example of a community custom is the practice of marrying a brother's widow, prevalent in several societies.
Guild Customs
Guild customs are specific to traders and their communities.
Requirements for Customs to Become Law
For a custom to become legally enforceable, it must meet several requirements. It must be continuously practised by the majority of people and be proven through unambiguous evidence. It should be reasonable, certain, and not vague or ambiguous. Additionally, it must not be against public policy, morality, or any statutory law. The specific requirements may vary depending on the context and social values of the time.
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Modern sources and influences
Modern Hindu law, also known as Hindu Personal Law, is an extension of Anglo-Hindu Law, which was developed during the British colonial period in India. It is applied to personal law, including marriage, inheritance, and adoption, while India's secular legal system governs criminal and civil law.
Legislation
Legislation, or codified law, is considered a modern source of Hindu law. It is necessary to attain uniformity of law and to abolish inhumane and irrational practices. Examples of important legislations on Hindu Law include the Hindu Marriage Act (1955), the Hindu Succession Act (1956), the Hindu Minority and Guardianship Act (1956), and the Hindu Adoptions and Maintenance Act (1956).
Judicial Precedents
Judicial precedents, or case law, are another source of modern Hindu law. This refers to the practice of lower courts following the decisions of higher courts when a common question of law is involved. During British rule, English judges would consult Hindu Pandits to interpret local Sanskrit laws and use them to settle conflicts, thereby creating precedents.
Equity, Fairness, and Good Conscience
In the absence of existing Hindu Law or applicable rules, judges have the authority to decide cases based on the principles of justice, equity, fairness, and good conscience. This concept was introduced by the British administration in the 18th century and has since become a source of law in its own right.
Influence of British Rule
The British colonial administration played a significant role in shaping modern Hindu law. They codified various aspects of the Hindu legal tradition into the Indian legal system, and their influence continued with the development of Anglo-Hindu case law and statutory intervention. The British also introduced the concept of "'schools'" within Hindu law, attempting to delineate the Hindu legal tradition for the purposes of compiling law books.
Modernisation and Marginalised Groups
Efforts have been made to modernise and increase the legal rights of marginalised groups within the Hindu legal system. For example, the passage of the Hindu Code Bills and the Medical Termination of Pregnancy Act (1971), which allowed Indian women to legally obtain abortions, reflected a move towards a more secular and equal society. However, some argue that the Indian government's commitment to legal uniformity threatens the religious traditions and legal rights of minority groups.
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Frequently asked questions
The sources of Hindu law can be divided into ancient and modern sources. Ancient sources include the Vedas, Smritis, and commentaries, while modern sources include judicial decisions, legislation, and landmark judgements.
Ancient sources of Hindu law include the Vedas, which are considered the ultimate religious texts, Smritis such as Manusmriti and Yajnavalkya Smriti, and commentaries such as Dharmashastras, which provide general principles and interpretations of laws. These sources were written in Sanskrit and governed various aspects of Hindu life, including marriage, inheritance, and conduct.
Modern sources, such as judicial decisions, legislation, and landmark judgements, have filled the gaps left by ancient texts and adapted Hindu law to contemporary social and legal contexts. The British rule also influenced Hindu law by introducing concepts of equity and justice, which were already present in Dharmashastras but took on a new form under colonial rule.
