Mention the sources of Hindu Law and point out the relative importance of each.
Ans. Sources of Hindu Law.—It would be convenient to classify the various sources of Hindu Law under the following two heads:
1. Ancient Sources. —Under this head fall the following four sources:
(iv) Digests and Commentaries and
2. Modern Sources.—Under this head fall the following three sources:
(ii) Judicial Decisions;
(iii) Equity, Justice and 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 j 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 Athary Veda. Of these Vedas, Rigveda is oldest literature. Vedas are supposed to contain the direct words of the revelation, and are thus held to be infallible. The Sivas have now little practical value.
The Smritis.—The word “Smritis” literally means “what is remembered” and is believed to be based on lost texts of the Vedas, although not in the exact language of the revelation. Their authors do not claim to he divinely inspired, but being perfectly familiar with the Vedas they profess to compile from memory the divine rules handed down by tradition. So we can say that Smritis are of human origin. Among the Smritis, Manu’s Smriti stands foremost. After him, Yajnnvalkya, Narada, Parashara and Brihaspati’s Smritis are more important for purposes of ascertaining the law.
Yajnvalkya gives a list of twenty law givers—Manu, Atri, Vishnu, Harita, Yajnavalkya, Ushana, Angira, Yama, Apastamba, Samvarta, Katyayana, Brihaspati, Parashara, Vyasa, Sankha, Likhita, Daksha, Gautama, Satatapa and Vasistha. According to the commentator, Vijnaneshwara, this list is not exhaustive, it is only illustrative.
The Smritis are of two kinds :
(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 : “Somewhere in the order pf 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 IA 1391, 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) v iramitrodaya, by Mitra Misra;
(4) Vivada Chintamani, by Vachaspati Misra;
(5) Vivada Ratnakara, by Chandeshwara;
(6) Dayatattwa, by Raghunandana;
(7) Dayakramasangraha, by Sri Krishna;
(8) Smriti Chandrika, by Devananda Bhatta;
(9) Parasara Madhviya, a commentary on Parasara, by Madhavacharya; and
(10) Vyavahara Mayukha, by Nilkantha.