Hindu Law: An Introduction

Introduction:

The main role of social rules and regulation as legislation is to strength the positive human institutions and reduce the harmful and negative activities and its impact. As it is observed that it is a very wide area to control through rules and regulation because it is not possible to control human behaviour completely. But we can direct it in a proper direction through these rules and regulations for the betterment of the society. Hindu law plays the same role. Its not for controlling human life but to provide a direction so that we all can live a proper methodological society properly. For instances Hindu law provides institution for marriage, inheritance and adoption laws protecting the interest of children along with the several customary law and tradition which are followed in the society from the earlier time.

It is true that Hindu law has changed as the time but it is essential for a good law that it change as the time change otherwise it will harm the society instead of doing gain. In the beginning there were very few laws but as the time required new laws were added as new customs and traditions. The main sources of Hindu law- Shruti, Smritis, Dharmasutras, Dharmashastras, Digest and Commentaries along with the customs, legislations and precedents. 

As it is observed in Vedas that law is a part of dharma and it is well accepted by the society. According to Manu “Dharma” is what is followed by those who are learned in Vedas and what is approved by the conscience of the virtuous that are exempt from hatred and inordinate affection. Further, Medhatithi, one of the early commentators on Manu, says that the term “dharma” stands for ‘duty’.

The first attempt to codify Hindu law was done by Britishers for the better proceeding of court and judiciary through interpreting the important Dhamashastras along with the employing pandits for court for interpretation of classical Hindu law. Later on that is after the independence in the year 1955 and 1956 the main attempt to codify hindu law was done through the passing of the Hindu Marriage Act, 1955, the Hindu Adoption and Maintenance Act, 1956, the Hindu succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 etc.

 Who is Hindu? :

The actual meaning of the word ‘Hindu’ but the now law suggests that a person is hindu to whom Hindu law apply. Earlier in the case of Shastri Yagnapurusholasji v. Vaishya, the Supreme Court observed the question that who are hindu. In its answer, it said that the word Hindu is derived from the word Sindhu also known as Indus river.

Dr. Radhakrishnan has also observed that the Hindu civilisation is so called since its original founders or earliest followers occupied the territory drained by the Sindhu (Indus) river system corresponding to the North West provinces in Punjab. This is recorded in Rig Veda, the oldest of the Vedas. The people on the Indian side of the Sindhu were called Hindus by the Persians and later Western invaders. That is the genesis of the word Hindu. Thus, the term Hindu had originally a territorial and not a creedal significance. It implied residence in a well defined geographical area[1].

But now it a term which is applies to whom the Hindu law enforced. In this category three classes involves which are as following[2];

  1. Any person who is a Hindu, Jain, Sikh or Buddhist;
  2. Any person who is born of Hindu Parents;
  3. Any person who is not a Muslim, Christian, Parsi or Jew and who is not governed by any other law.

Sources of Hindu Law:

Hindu law is an ancient law which is followed for a very long time. But as the time changed it also change accordingly which is why it is gone through many phases. Originally the main sources were Shruti, Smritis, Digest and Commentaries and Customs. But as the time changes the sources also increased and included legislation, precedents, equity, justice and good conscience. These all sources are explained below;

  1. Shruti: – It literally means ‘heard’. This word has taken from the word ‘Sru’ i.e. ‘to hear’. Manu has defined Sruti as follows- “By Sruti or what was heard from above (from God) is meant the Veda”. It is primary source of Hindu law. It includes the lecture and summary of four Vedas, the six vedangas and the eighteen Upanishads which people hear. . They are mostly religious in character and the means of attaining true knowledge and Moksha or Salvation.
  2. Smritis: – These are based on shruti. It is heard, remembered and handed down generation to generation. The smrities are divided into Primary and Secondary Smrities contained in Dharma Sutra (Prose) and Dharmashastras (Poetry) respectively. Gautama, Baudhyana, Apastamba, Harita, Vasistha and Vishnu are the chief Dharma Sutra writers and Manu, Yajnyavalkya, Brihaspati and Narada belong to Dharamashastra. The exact number of smrities is not definitely known, but Manu Smriti is the earliest one.
  3. Digest and commentaries: – One smriti differed from another and sometimes in the same smriti there were conflicting texts. Thus the need arose for further analysis, systematisation and assimilation of law. This need was satisfied by the digest (nibandh) and commentaries (tika).

The writing of a particular Smriti is called commentary while the writing on different smrities is called Digests. There are a number of commentaries but the main are Daya-Bhaga by Jimutavahana and Mitakshara by VUnaneshwar.

  1. Customs: – As human lead his life it follows certain pattern of behaviour which is known as customs. But to make a behaviour into a custom the following essential must fulfil;
    1. It should be certain
    2. Reasonable
    3. It should not be immoral
    4. Reasonable
    5. Must not be opposed to public policy
    6. It must not be forbidden by any express enactment of the legislature

There are three types of customs which are local customs, class customs and family customs.

  1. Legislation: – Through legislation several laws enacted for the betterment of the society. Hence, the Hindu law has been reformed and modified by the legislature through various enactments. For instances, the British government itself passed certain acts with a view to bring some reforms in certain aspects of law such as the caste Disabilities Removal Act, 1850, the Hindu Widow’s Remarriage Act, 1856, the Inheritance (Removal of Disabilities) Act, 1928, the Indian Succession Act, 1925, the Child Marriage Restraint Act, 1928, the Hindu Women’s Right to Property Act, 1937. Further, after independence the Hindu Marriage Act, 1955, the Succession Act, 1956, the Hindu Adoption and Maintenance Act 1956, the Prohibition of Child Marriage Act 2006 etc.
  2. Precedents: – Through several judicial judgements courts set precedents for its subordinate courts to deal with the matters which has similar problem which they have to follow as law. The main object of this it that of interpretation of Hindu law and its applicability. Once its decided by the higher court it is easy for the lower court to follow the decision.
  3. Equity, Justice and Good Conscience: – In the absence of any specific law in the Smriti, or in the event of a conflict between the Smritis, the principles of justice, equity and good conscience would be applied. In other words, what would be most fair and equitable in the opinion of the Judge would be done in a particular case.

Schools of Hindu Law:  

Through the emergence of digest and commentaries the concept of schools of Hindu also emerges. It is divided in two parts: –

  1. Mitakshara
  2. Daya-Bhaga.

Explanations of these two schools are as following: –

  1. Mitakshara: – The Mitakshara School (literally means ‘a concise work’) is a running commentary on the code of Yajnavalkya, written by V Unaneshwar (11th Century) and prevails in all parts of India except in Assam and Bengal. But in some matters Mitakshara prevails even in Assam and Bengal as authority on all questions in respect of which Daya baga is silent. This school is further divided in several schools according to the territory;
  2. Benaras School
  3. Mithila School
  4. Maharastra or Bombay School
  5. Dravida or Madras School
  6. Punjab School
  7. Daya-Baga School: – The Daya-Baga School which is followed mainly in Bengal, is not a commentary on any particular code, but is a digest of all the codes and written by Jimutavahana in 12th Century. The Dayabaga is digest on leading Smritis and deals only with partition and inheritance.

 Conclusion:  

Hindu law is not a proper law because it is not a binding force instead of that it is a way of life. It directs us to live a life in a proper way for which several institution were established such as marriage, adoption, inheritance, guardianship etc.

Before the codification of Hindu law it is very difficult to interpret it due to its Sanskrit translation and people face many problems during solving a dispute regarding Hindu law. Thus, the first attempt for codification is made by Britishers for the better working of the judiciary and the welfare of the society. After the independence the Indian government codified it properly and it is following accordingly with new amendments and enactments.  


References:-

[1] Radhakrishnan: Hindu view of Life

[2] Section 2 of Hindu Marriage Act, 1955

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