Sources and Schools of Hindu Law

Hindu law is considered to be the most ancient and prolific law in the world. It has been around each stage. It is around 6000 years of age. Hindu law has been built up by the individuals, not to expel any wrongdoing or offence from society however it was set up with the goal that the individuals will tail it to achieve salvation.

Initially, Hindu law was set up with the goal that the need of the individuals gets satisfied. The idea was started for the government assistance of individuals.^[1]

Hindu Law is accepted to be divine law. It had been uncovered by God through Vedas to the individuals. The theoretical standards of life sketched out in the Vedas had been extended and refined by different sages and religious zealots. Individuals living on the Indian subcontinent have driven their lives by following the rules and ideas given in the Vedas for a large number of years.

Such rules formed into laws that were trailed by the individuals and executed by the rulers, and consequently turned into the law of truth. All through this new age, similar laws have been retrofitted to coordinate current conditions and have been arranged as various demonstrations of which the principle one’s are- The Hindu Marriage Act 1955, The Hindu Adoption and Maintenance Act 1956, The Hindu Minority and Guardianship Act 1956, and The Hindu Succession Act 1956.

Sources of Hindu Law

Sources of Hindu law can be broadly classified into:

1. Ancient Sources
2. Modern sources

A. Ancient Sources of Hindu Law

The Ancient sources of Hindu Law can be subdivided into 4 categories – Shrutis, Smritis, Digests and commentaries and Customs.

Shruti means “what is heard”. The word is derived from the root “Shru” which means ‘to hear’. In theory, it is the primary and paramount source of Hindu law and is believed to be the language of divine revelation through the sages. It is believed that the rishis and munis had reached the height of spirituality where they were revealed the knowledge of Vedas. It is derived from the root “vid” meaning ‘to know’.

The term Veda is based on the tradition that they are the repository (a place where something is found in significant quantities) of all knowledge. The Vedas do not contain rules of Law but deal with marriage, succession, adoption and other human relations. There are four types of Vedas— Rig Veda, Yajur Veda, Sama Veda and Atharva Veda.

The word Smriti is derived from the root “Smri” which means “to remember.” Traditionally Smritis contain those portions of the Shrutis that the sages forgot in their original form and the idea whereby jeu wrote in their own language with the help of their memory. Hence, the basis of the Smritis is Shrutis but they are human works. Smritis are secondary sources which are derived from their memory of reading Shrutis.

The three majors Smritis are— Manu Smriti, Yagnavalkya Smriti and Narada Smriti. Manu Smriti is written with a focus on the “Shoulds” (Obligations) of the Dharma rather than on the actuality of everyday practice in India at the time, so it is considered to be the supreme authority to the entire country.^[2] Yagnavalkya Smriti was given by Yagnavalkya of Mithila. He composed 1010 Shlokas. He has been called the best composer and most homogeneous text of Dharmashastra tradition.

It reflects a superior vocabulary and level of sophistication in comparison to other texts of its time. Narada Smriti was given by Narada in the 400-500BC. The structure of Narada Smriti is based on the eighteen titles of law, which are also mentioned in Manu Smriti but with some variations in names. The text begins with a brief introduction to Lae and the courts before dealing with these eighteenth titles, devoting a chapter to each of them.

Digests and Commentaries covered a period of thousand years from 700AD. In the first part of the period, most of the commentaries were written on the Smritis but in the later period, the works were in the nature of digests containing a synthesis of the various Smritis and explaining and reconciling the various contradictions. The last commentary is by Nanda Pandit on Vishnu- dharasutra called Vijayanti in the 17th century.

Custom is regarded as the fourth source of Hindu Law. From the earliest period custom (aachara) is regarded as the highest form of ‘Dharma.’ As defined by the Judicial Committee custom signifies a rule, which in a particular family or in a particular class or district has from long usage obtained the force of Law. Custom means Uniform Behaviour with a belief that it is compulsory to follow such a mode of conduct.

Custom is a mode of conduct, that arises by the practice initiated by the people in the society. Custom is a principal source. Its position is next to Shrutis and Smritis but usage of custom prevails over Smritis. It is superior to written laws. There are certain characteristics which need to be fulfilled for declaring a custom to be a valid one. In the case, Laxmibai V. Bhagwanthbuva AIR (2013) SC 1204^[3], the Honourable Supreme Court of India held that custom is an established practice at variance with the general law. A custom varying general law may be a general, local, tribal or family custom.

B. Modern Sources of Hindu Law

The Modern sources of Hindu Law can be subdivided into 4 categories— Justice, Equity and Good Conscience, Legislation and Precedent.

The courts cannot refuse to settle the dispute in the absence of law and they are under an obligation to decide such a case also. For determining such cases, the courts rely upon the basic values, norms and standards of fair play and property. In terminology, this is known as the principles of Justice, Equity and Good Conscience. They may also be termed Natural Law. In the case, Gurmukh V. Kamla Bai (1951)[4], the court held that “where there is a lack of rules of Hindu Lae over any subject, at that point the court should pronounce their decision on the basis of the principle of Justice, Equity and Good Conscience.

Legislation is a vital source of modern Hindu law. During the British period, only very few legislations were passed touching the personal laws of Hindus, in tune with the British policy of non-interference in the matters of personal status of native Indians. Legislations are Acts of Parliament which have been playing a profound role in the formation of Hindu law.

Few examples of important Statutes are The Hindu Marriage Act, of 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The Hindu Minority and Guardianship Act, 1956, etc. After codification, any point dealt with by the codified law is final.

Precedent is a source of law in the sense that by the purpose of judicial interpretation, doctrines, principles and rules of law stand modified or altogether new principles, doctrines and rules have been introduced in the body of Hindu law. For these principle doctrines and rules, the source of authority is the precedent.

One of the gravest cases of the Supreme Court which deserves much criticism is the case of Krishna Singh V. Mathura Ahir (1980) AIR 707. In this case, the Allahabad High Court had rightly held that the discriminatory ban imposed on the Sudras by the Smritis stands abrogated as it contravenes their fundamental rights.

Schools of Hindu Law

Schools of Thought refers to divided opinions on a subject matter. thus, schools of thought on Hindu Law refer to the varied and divided opinions on the rules and principles of Hindu Law. The Schools of Hindu law can be broadly classified into Mitakshara School and Dayabhaga School.

A. Mitakshara School of Thought:

Mitakshara school owes its name to Vijnanaeshwara’s commentary on the Yajnavalkya smriti by the name of ‘Mitakshara.’ This school prevails in the whole of India except Assam and Bengal.[2] This in spite of being a running commentary is also a digest of practically all the leading Smritis and deals with all the titles of Hindu law. The date of composition is placed by Kane from A.D. 1100-1200.

The word Mitakshara literally means a ‘brief compendium’. The Mitakshara School follows the law of inheritance based on the Principle of Propinquity i.e. on the nearness of blood relationship. However, the full effect of this was not given. There are four Sub-Schools under the Mitakshara School— Dravidian School of Thought, Maharashtra School of Thought, Bananas School of Thought and Mithila School of Thought.

Dravidian School of Thought exists in South India and it is also called the Madras School of Thought. In the case of adoption by a widow it has a peculiar custom that the consent of the sapindas (blood relations) was necessary for a valid adoption. In the case of Collector of Madura vs. Mootoo Ramalinga Sethupathy (1940) 1 MLJ 400 (Ramnad case)^[5], Based on the Smriti Chandrika and Prasara Madhviya, the Privy Council concluded that in the Dravida School, in the absence of authority from the husband, a widow may adopt a son with the assent of his kindred.

Maharashtra School of Thought, also called the Bombay School of Thought, exists in Bombay, it extends to Western India. Its authorities are Vyavakara Mayukha and Nirnaya Sindhu. The Bombay school has got an entire work of religious and Civil laws. Banaras School of Thought extends to the whole of Northern India except rural Punjab. The main authorities are the Virmitrodaya and Nirnaya Sindhu. Mithila School of Thought operates in Tirhut and certain districts of Northern Bihar. The main authorise are Vivada Chintamani and Vivada Ratnakara.

B. Dayabhaga School of Thought

The Dayabhaga school is considered to be the dissident school of the Banaras School. Banaras- has been the seal of the Brahmana learning and the citadel of Brahmin orthodoxy and conservatism. The Bengal school propagated a number of enlightened theories and doctrines. This school owes its origin to Jimutavahana’s digest on leading Smritis by the name of Dayabhaga.

This School is prevalent in Assam and Bengal. Kane places the date of composition of Jimutvahana’s literary career from 1090-1130 A.D. Dayabhaga School is a digest of all the codes. This school is based on the principle of religious efficacy or spiritual benefit. The ones who confer more spiritual benefit is entitled to inherit the property in comparison to those who confer less spiritual benefit based on the Doctrine of Oblations.

The females in the family may also inherit the property. According to this School, the sons do not have a birth right to the property. In the event of the coparcener dying issueless, his widow has a right to succeed to his share and to enforce a partition on her own account.

^[1] Asthana, S. All you want to know about Sources and Schools of Hindu law.(September 10, 2019) https://blog.ipleaders.in/sources-schools-hindu-law/

^[2] Sardana, V. Ancient & Modern Sources of Hindu Law. (2017, June 03). https://lawnotesforstudents.blogspot.com/2017/06/hindu-law-ancient-sources-of-hindu-law.html

^[3] V. GOPALA GOWDA, Laxmibai V. Bhagwanthbuva AIR (2013) SC 1204, https://indiankanoon.org/ doc/115367233/ (New Delhi, January 29, 2013)

^[5] n.d, Ramnad case: Clear proof of usage will outweigh the written text of the Hindu law, https:// bdjls.org/ramnad-case-clear-proof-of-usage-will-outweigh-the-written-text-of-the-hindu-law/, (July 11, 2018)

Author Details: Smrithi Athreya [Student, Christ (Deemed to Be) University]