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1. SESSION:- 2016-17
SUBJECT:- “Hindu Law”
TOPIC:- “Sources of Hindu Law”
SUBMITTED TO: SUBMITTED BY:
Miss. Shaila Mehmood Mohd Ashraf
Asst. Prof. Department of Law 14B.A.LL.B.48
Aligarh Muslim University GI-4667
Murshidabad Centre. B.A.LL.B. Vth Semester
Aligarh Muslim University
Murshidabad Centre

2.  TOPIC:- Sources of Hindu Law ( Ancient & Modern)
1. Introduction
2. Ancient Sources
2.1 The shrutis
2.2 Smiritis
2.3 Commentries & Diegest
3. Modern Sources
3.1 Judicial Decisions
3.2 Legislation
3.3 Equity Justice & good Conscience
3.4 Customs
4. Conclusion
Bibliography
Contents

4. HinduLaw, “An Introduction.”
From thousands of years people living in the Indian
subcontinent have been leading their lives by following the
guidelines and concepts given in the Vedas. These
guidelines have evolved into rules followed by the people
and enforced by the rulers and have thus become de facto
law. In this modern times, the same laws have been
retrofitted to suit present conditions and have been
codified in the form of several acts of which the important
ones are - Hindu Marriage Act 1955, Hindu Adoption and
Maintenance Act 1956, Hindu Minority and Guardianship
Act 1956, and Hindu Succession Act 1956.

5. Origins of Hindu Law
It is believed that Hindu law is a divine law. It was
revealed to the people by God through Vedas. Various
stages and ascetics have elaborated and refined the
abstract concepts of life explained in the Vedas. (1)
-------------------------------------------------------------------------
(1) Mulla, principle of hindu law, vol-i, p. no. 67 ed. Desai, S.A, 19th ed.,
Lexis nexis butterworths, 2005

6. Sources of Hindu Law
The Hindu Law is credited to be the most ancient law system
which is approximately 6000 years old. The sources of Hindu Law
can be kept under two headings:-
• 1. Ancient or original sources.
• 2. Modern Sources. (2)
• ------------------------------------------------------------------------------------
• (2) Diwan,p., Modern hindu law, p. no. 37 17th ed., Allahabad law agency,
2006

7.  ANCIENT SOURCES :- According to Manu there are four
sources of Hindu Law as per following details, in addition to
these four there was also that what is agreeable to one’s
conscience:-
1. Shruti 2. Smriti 3. Digest and Commentaries 4. Custom
and Usages.
 MODERN SOURCES: - Following are the modern sources
of Hindu Law :-
1. Equity, justice and good conscience.
2. Precedents
3. Legislation.

8. Sources of
Hindu Law
Ancient
Sources
Shruti Smiriti
Diegest
&
Comme
ntries
Custom
& Usage
Modern
Sources
Equity,
Justice &
Good
Conscienc
e
Precedent
Legislatio
n

9. 1. SHRUTI :- The name “shruti” is derived from the
word “sru” which means to hear and it signifies what is
heard. Shruties are considered as the primary and
paramount source of Hindu Law. The shruti consist of the
four Vedas and Upanishads dealing with the religious rites
that contain the meaning of attaining true knowledge and
moksh as salvation. The Vedas are ‘Rig’, ‘Yajur’, ‘Sam’,
‘Atharva’. (3)
Dr. P.V. Kanne, in his book, “History of Dharamshashtra”
said that, “If we want to see religion(Law) in a proper way,
then we should analysis Shruti and Smritis.”
----------------------------------------
(3) Dr. R.K. Agarwal, Hindu Law, p. no. 16, 24th Edition 2015, Central law
Agency, Allahabad.

10. 2. SMRITIS :-Means ,”What was remembered” thus Smritis were known
as golden era, because it is era when well organised dependant on the
remembrance of saints and the era of creation of and serial wise
development of Hindu Law started. It is the second Important source of
Hindu Law. It is of two types first is prose style and the other is of poetry
style. (4)
Smritis are divided into two :
i) Dharam Surtra (prose style) :- Dharam sutra are famous of Gautam,
Buddhyan, Apastamb, Harit, Vishnu and Vasith.
ii) Dharam Shashtra (poetry style) :- Are famous for Manu Smriti,
Yagyavalkya Smriti, Narad Smriti etc.
Manu smritis made of 12 chapters and 2694 shlokas. Yagyavalkya smriti is
divided into 3 parts and is extremely clear, brief and organised. Narad
Smriti being the last smiriti is such first legal code which mentions subjects
related to Judicial process, courts and Judiciary.
-----------------------------------------------------------------------------------
(4) Supra note (3) p. no 17.

11. 3. Digest and Commentaries :- These are the third important
source of Hindu Law. The commentaries through professing and
purporting the rest on the smrities explains modified and enlarged
tradition recorded there to bring them into harmony and accordingly
to prevent practices of the day. Case : Atmarao v/s Bajirao (5) It was
held that Digest writers and commenter’s has given the statements of
Smritis which can fulfil the present requirements & ahead from
smrities.
The period of the commentaries and digest is between 700 AD -
1700Ad. The last commentary was Vijayanti written by Nand Pandit.
It is a commentary on Vishnu Dharmasastra.
The principle commentaries are: i) Dayabhaga by Jimutwahana,
ii) Mitakshara, a commentary on Yajnawalkya Smiriti by
Vijneshwara, iii) Vivada Ratnakara by Chandeshwara, iv) Smiriti
Chandrika by Devan Bhatta, v) Vyavahara Mayukha, by Nilkantha.
-------------------------------------------------------
(5) 1938, 62 IA 139.

12. Mitkshara, is one of the most important commentary on
Yajnawlkya Smiriti and is held in high steem throughout India. It
owes its authorship to Vijneshwara. It is the prevailing authority
throughout India except Bengal.
Dayabhaga, is the chief commentary in Bengal. It was written
by Jimutvahana. It mainly deals with inheritance and partition.
Dr. Jolly, says that, “it is one of the most striking composition in
the whole department of Indian Jurisprudence.”

13. 4. CUSTOMS AND USAGES:- These are considered an important
source of Hindu Law. Narad Smriti says that, “Customs are powerful”
they are above the religion. D.F.Mulla says that, “ Among the three
sources of Hindu Law Custom and Usage are the one.”
According to Holland, “ Custom is a step of generally followed conducts
As a way is created over gress by repeated walking similarly custom is
created in accordance to the conduct of everyday life.” (6)
Case: Collector of Madurai v/s Mottaramlingam, (7)
: Privy Council held that, “in Hindu Law the clear proof of customs shall
be more relevant then the basic epics of law.”
Case: Harparsad v/s Shiv Daya –(1816): It was said that, “the custom
is family or particular class or area owing a long tradition.”
------------------------------------------------------------
(6) Supra note (1), p. no. 75.
(7) {(1868) 12 MIA 397}

14. Although codified law has given place to custom, but it is limited.
Codified Hindu Law recognises custom only when it has been
expressly given a place. Custom under Hindu Marriage Act 1955 can
be applied over two topics:
i) Any Marriage may be solicited by the customary tradition of
the parties.
ii) Divorce can be obtained br prevailing custom or usage and a
married male or female above the age of 15 years can be adopted as
customary rules.
The Judicial Committee explained that, “Custom is a rule which in a
particular family or in particular district has from long usage,
obtained the force of law. (8)
Hindu sages have recognized good custom binding on the Hindu.
Manu says, “ In memorial is transcendent Law.”
---------------------------------------------------
(8) http://indianhindulaw.googlepages.com/sourcesofhindulaw last visited
on 15/11/2016 at 7:05 p.m.

15. Custom is divided in three parts:-
Local custom, Such custom is belongs to some particular
locality, or district and they are binding on the inhabitants of
such place.
Class custom, Such custom are of a caste, or of a sect, or of
the followers of a particular profession or occupation, such as,
agriculture, trade, mechanical art and the like.
Family custom, Such custom relates to a particular family,
particularly concerning succession to an impartible Raj, or
succession to Maths, or religious foundations.

16. 5. EQUITY, JUSTICE AND GOOD CONSCIENCE:- In India the origin of
equity is traced the Hindu period when jurists explained the old law and
gave new rules of interpretation and equitable solutions in cases of conflict
between the rules of various law. In case of a conflict between the rules of
Smrities that should be followed which is based on reasons, 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. Actually Britishers not only established a judicial
system in India but also facilitated though the High Court charters that
wherever there is lack of lawful rules, their decision should be on the
principles of equity, justice and good conscience.
Case : Gurmukh Singh v/s Kamla Bai (9) : It was held that, “ Where there is
lack of rules of Hindu Law over any subject, there court should pronounce
their decision on the basis of principle of equity, justice and good
conscience.”
-------------------------------------------------------------
(9) {(1951) S.C.R. 1135}

17. 6. PRECEDENT:- It is an important source of law. It means the
Judicial decision over any disputed matter which shall be guideline
for the disposition of future similar disputed matters. (10)
Udhao v. Beshar, (11)
“A precedent is not merely an evidence of a law but also a source of
law and the courts are bound to follow the precedents.”
Generally the decision of Supreme Court, High Court, and Privy
Council have the effect of precedent over the subordinate court.
The importance of Precedent as a source of Hindu Law can be
understood from the example that if we have to look into the
importance of custom and Usages in Hindu Law, then we shall have
to analyse the case : Collector of Madurai v/s Mottaramlingam, (12)
it is pertinent to mention here that there are certain rules for the
application of precedent like :-
-----------------------------------------------------------------
(10). Supra note (3) p. 21.
(11). ( AIR, 1946 Nag. 203.)
(12). (1868, 12 MIA 397),

18. i) The decision of Supreme Court is binding over all the
subordinate courts.
ii) The decision of Supreme Court is binding to its subordinate
courts.
iii) The decision of Privy Council is binding over all High Courts
provided that it has not be over ruled by the Supreme Court.
7. LEGISLATION:- The last important source of Hindu Law is
the legislation. Their source has originated after the establishment
of English State in India, when English rulers started enacting
several laws. Laws were enacted in accordance to the state, time
and circumstances, there were amended too. Legislation has
become at present potential source of Law in India. Today most
of the subjects of Hindu Law has been codified. (13)
---------------------------------------------------------------------
(13) Dr. U.P.D. Kesari, Modern Hindu Law, p. no. 25, 10th Edition 2015, Central
law publications, Allahabad.

19.  Some of the important Acts in this respect are:-
01. Hindu Widow Remarriage Act 1856.
02. Hindu Disposition of Property Act, 1916.
03. Hindu laws of Inheritance (Amendment) Act, 1919
04. Hindu Women’s right to Property Act. 1930.
05. Hindu Women’s right to separate Residence and Maintenance Act
1946.
06. Hindu Succession Act 1956
07. Hindu Marriage Act. 1955
08. Hindu Adoption & Maintenance Act. 1956
09. Hindu Minority and Guardianship Act 1956.
10. Hindu succession (Amendment) Act, 2005.

20. In the arena of personal laws hindu law play a very vital role and it
govern the persons who comes with in the perview of hindu.
In ancient period Hindu law had only its divine nature i.e., law of the
God, but in now days its nature has totally changed.
Its devine nature has been seized by its interpretation, enacting laws
and also by the judicial precedents.
By the interpretation of the ancient sources of Hindu law, its scope has
become very wide.
Modern sources of Hindu law has a colossal importance, in the
evolution of modern Hindu law.
CONCLUSION

21. **Dr. R.K. Agarwal, Hindu Law, 24th Edition 2015, Central law
Agency, Allahabad.
** Dr. U.P.D. Kesari, Modern Hindu Law, 10th Edition 2015, Central
law publications, Allahabad.
** Diwan,p., Modern hindu law, 17th ed., Allahabad law agency,
2006
** Mulla, principle of hindu law, vol-i, ed. Desai, S.A, 19th ed.,
Lexis nexis butterworths, 2005.
** http://indianhindulaw.googlepages.com/sourcesofhindulaw last visited
on 15/11/2016 at 7:05 p.m.
**http://en.wikipedia.org/wiki/hindu_law last visited on 17/11/2016 at
6:50 p.m.
Bibliography