{"id":2869,"date":"2017-10-15T08:55:49","date_gmt":"2017-10-15T03:25:49","guid":{"rendered":"http:\/\/www.infipark.com\/articles\/?p=2869"},"modified":"2017-11-08T00:12:35","modified_gmt":"2017-11-07T18:42:35","slug":"mention-sources-hindu-law-point-relative-importance","status":"publish","type":"post","link":"https:\/\/www.infipark.com\/articles\/mention-sources-hindu-law-point-relative-importance\/","title":{"rendered":"Mention the sources of Hindu Law and point out the relative importance of each."},"content":{"rendered":"

Mention the sources of Hindu Law and point out the relative importance of each.<\/strong><\/p>\n

Ans. Sources of Hindu Law.\u2014<\/strong>It would be convenient to classify the various sources of Hindu Law under the following two heads:<\/p>\n

1. Ancient Sources. \u2014<\/strong>Under this head fall the following four sources:<\/p>\n

(i) Srutis;<\/p>\n

(ii) Smrities;<\/p>\n

(iii) Purana;<\/p>\n

(iv) Digests and Commentaries and<\/p>\n

(v) Custom.<\/p>\n

2. Modern Sources.\u2014<\/strong>Under this head fall the following three sources:<\/p>\n

(i) Legislation;<\/p>\n

(ii) Judicial Decisions;<\/p>\n

(iii) Equity, Justice and Good conscience.<\/p>\n

The Srutis.\u2014<\/strong>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\u2014 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.<\/p>\n

The Smritis.—<\/strong>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.<\/p>\n

Yajnvalkya gives a list of twenty law givers\u2014Manu, 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.<\/p>\n

The Smritis are of two kinds : <\/strong><\/p>\n

(a) In prose style.–<\/strong>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.<\/p>\n

(b) In poetry style.\u2014<\/strong>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.<\/p>\n

The Puranas.\u2014<\/strong>Mitra Misra in his Commentary on the Yajnavalkya Smriti says that Puranas are not authoritative on law. They are also\u00a0occasionally 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.<\/p>\n

Digests and commentaries.\u2014<\/strong>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”.<\/p>\n

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.<\/p>\n

The principal commentaries are :<\/strong><\/p>\n

(1) Dayabhaga, by Jimutavahana;<\/p>\n

(2) Mitakshara; a Commentary on Yajnavalkya, by Vijnaneshwara;<\/p>\n

(3) v iramitrodaya, by Mitra Misra;<\/p>\n

(4) Vivada Chintamani, by Vachaspati Misra;<\/p>\n

(5) Vivada Ratnakara, by Chandeshwara;<\/p>\n

(6) Dayatattwa, by Raghunandana;<\/p>\n

(7) Dayakramasangraha, by Sri Krishna;<\/p>\n

(8) Smriti Chandrika, by Devananda Bhatta;<\/p>\n

(9) Parasara Madhviya, a commentary on Parasara, by Madhavacharya; and<\/p>\n

(10) Vyavahara Mayukha, by Nilkantha.<\/p>\n

Other Sources.\u2014<\/strong>Despite primary sources of Hindu Law there are some secondary sources.<\/p>\n

The other sources of Hindu Law are :<\/p>\n

(a) Custom,<\/p>\n

(b) Legislation,<\/p>\n

(c) Judicial decisions,<\/p>\n

(d) Justice, equity and good conscience.<\/p>\n

(a) Custom.\u2014<\/strong>Custom is a rule which in a particular family or in a particular class of persons or in a particular locality, has from long Usage, obtained the force of law. “Custom is a rule which in a particular family or in a particular district has from long usages obtained the force of law. It must be ancient, certain and reasonable and being in the derogation of general rules of law, must be construed strictly. The obligatory character of customs is so much recognized by the ancient text-writers that every custom is supposed to be based on a lost text of the revelations. The modern authorities are equally emphatic in their acceptance of the binding force of customs.<\/p>\n

For instance, the Privy Council have remarked : “Clear proof of usage will outweigh the written text of the law” Ramanand’s case, A.I.R. 1942 All. 100]. This is said that Smritis and digests were largely based upon customary laws. On matters not covered by the Smritis and commentaries, usage supplements the law laid down in them. According to Section 3 (a) of the Hindu Marriage Act, 1955 the expression ‘custom’ and ‘usage’ signify any rule which having been\u00a0continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family,” provided that the rule is certain and not unreasonable or opposed to public policy; provided further that in the case of a rule applicable only to a family it has, not been discontinued by the family.<\/p>\n

In Dr. Surjamani Stella Kujur v. DC. Hansdah, 12001 (42) AL 1847 S.C.], the Supreme Court observed. For custom to have the colour of a rule or law, it is necessary that it must be ancient, certain and reasonable.<\/p>\n

(b) Legislation.\u2014<\/strong>During the British regime in India, certain enactments have been made from time to time modifying and, supplementing the original Hindu Law, e.g., the Child Marriage Restraint Act, 1929, the Hindu Gains of Learning Act, 1930, and the Hindu Women’s Right to Property Act, 1937, etc. After independence four major legislations have been passed by the Indian Parliament which have made vital and dynamic changes in the law of marriage, adoption, maintenance, guardianship and succession.<\/p>\n

(c) Judicial Decisions.\u2014<\/strong>Judicial decisions are regarded as precedents for future cases. A precedent is not merely an evidence of iaw but a source of it and the courts of law are bound to follow the recedewis. are not sources; they have modified and supplemented the pure Hindu Law. It is not the function of the Courts to formulate the laws, but they are to interpret and ascertain the laws. Strictly speaking, legislation and judicial decisions are not sources; they have modified and supplemented the pure Hindu Law, but now they have emerged as important sources of Hindu Law.<\/p>\n

(d) Equity, justice and good conscience.\u2014<\/strong>In India the origin of equity is traced to the Hindu period when jurists explained the old laws and gave new rules of interpretation and equitable solutions in cases of a conflict between the rules of various laws. In case of a conflict between the rule of Smriti that one should be followed which is based on reason, justice and principles of equity. In view of the above observations and its practical application it will not be incorrect to mention equity, justice and good conscience as the next source of Hindu Law.<\/p>\n","protected":false},"excerpt":{"rendered":"

Mention the sources of Hindu Law and point out the relative importance of each. Ans. Sources of Hindu Law.\u2014It would be convenient to classify the various sources of Hindu Law under the following two heads: 1. Ancient Sources. \u2014Under this head fall the following four sources: (i) Srutis; (ii) Smrities; (iii) Purana; (iv) Digests and […]<\/p>\n","protected":false},"author":35,"featured_media":3025,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[47],"tags":[],"class_list":["post-2869","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-family-law-hindu-law"],"_links":{"self":[{"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/posts\/2869","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/users\/35"}],"replies":[{"embeddable":true,"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/comments?post=2869"}],"version-history":[{"count":7,"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/posts\/2869\/revisions"}],"predecessor-version":[{"id":3157,"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/posts\/2869\/revisions\/3157"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/media\/3025"}],"wp:attachment":[{"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/media?parent=2869"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/categories?post=2869"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.infipark.com\/articles\/wp-json\/wp\/v2\/tags?post=2869"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}