Sources of Hindu Law: A Comprehensive Overview, Assignments of Law

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SOURCES OF

HINDU LAW

PPT BY:- SAKSHI ROLL. NO. BA.LLB (SECOND SEM.) M.D.U.ROHTAK

Sources Of HINDU LAW are

following:-

Vedas(Shruti), Smritis,

1. Commentaries and digests,
2. Customs,
3. Legislations, and
4. Precedents or judicial decisions

2.Smritis:- ◦ (^) Smritis means “what was remembered”.It is believed that Smritis contained precepts of GOD ,but not in the language they had been delivered. ◦ (^) Smritis are the principal sources of lawyer’s law ,but they also contain matters other than positive law. ◦ (^) The Smritis of Mqnu and Yajnavalakya deal with religious rites, positive law, penance,true knowledge and liberation. ◦ (^) Some of the Smritis deal with positive law alone such as Smriti of of Narada,Brihaspati katyayana. ◦ (^) Some Smritis like Prashar Smriti deal very little with positive law.

Smritis cont. ◦ (^) THE YAJNAVALAKYA smriti gives a list of twenty sages,who are law givers. This list comprises of the following:- ◦ (^) MANU,ATRI , VISHNU,HARITA, YAJNAVALAKYA, USHANAS, ANGIRA,YAMA, APASTAMBA, SAMVARTA KATYAYANA, BRIHASPATI, PRASHARA, VYASA, SHANKHA LIKHITA ,DAKSHA, GAUTAMA, SATATAPA and VASHISHTHA. ◦ (^) Smritis are divided into : ◦ (^) DHARMASHASTRAS:- ◦ (^) Written in verse ◦ (^) Examples:-manu , Yajnavalakya, Narada ,katyayana and Brihaspati. ◦ (^) DHARMASUTRAS:- ◦ (^) Written in Prose and verse ◦ (^) Examples:-gautama,baudhayana and vashishtha.

Principal commentaries are:- Dayabhagha byJimuthvahana, Mitakshara a commentary on Yajnavalakya by Vijnaneshwara,

1. Viramitrodya by Mitra Mishra,
2. Vivada Chintamani by Vachaspati Mishra ,
3. Vivada Ratnakara by Chandeshwara,
4. Dayatattwa by Raghunanda ,
5. Dayakarmasangrah by Sri Krishna,
6. Smriti Chandrika by Devananda bhatta ,
7. Parashara Madhavaiya,a commentary on parashara by Madhavcharya,
8. Vyavhara mayukha by Nilkanta.

4. Customs:- ◦ (^) Customs are regarded as most important sources of law.In Collector of Madura VS.Mootoo Ramalinga,the privy council held that, “Under the Hindu system of law a clear proof of usage will outweight the written text of the law.” ◦ (^) The custom to be applicable should have the following essentials:- ◦ (^) THE CUSTOM must be ancient.
5. It must be certain and uniform.
6. It must be continuous.
7. It should not be immoral or against the public policy.
8. It should not be unreasonable.
9. It should not be opposed to statutory law.

Legislation cont.

6. THE HINDU IN INHERITANCE ACT ,1928.
7. THE HINDU LAW OF INHERITANCE (AMENDMENT) ACT ,1929.
8. THE HINDU GAINS OF LEARNING ACT, 1930.
9. THE HINDU WOMEN’S RIGHT TO PROPERTY ACT, 1937. 10.THE HINDU MARRIAGE ACT, 1955. 11.THE HINDU SUCCESSION ACT , 1956 AS AMENDED BY THE HINDU SUCCESSION (AMENDMENT) ACT, 2005. 12.THE HINDU ADOPTION AND MAINTENANCE ACT ,1956. 13.THE HINDU MINORITY AND GUARDIANSHIP ACT ,1956. 14.THE PROHIBITION OF CHILD MARRIAGE ACT, 2006.

6.Precedent:- ◦ (^) Precedent means previous judicial decision. Strictly speaking president is not the source of law in the sense in which the legislature is. Because the function of a judge is not to make law but only to interpret it. In integrating and applying the law to particular cases, the judges expressly or or by necessary implication and enunciate what the law ,is, and the view of the law expressed and acted upon by them serves as a guide in similar cases arising subsequently, and is taken to have a binding force. ◦ (^) The judicial decisions is a source of law in the sense that it is binding on the subordinate courts. If the decision is by the supreme court of India or by the Privy Council , it is binding on all the courts. There is now a large bulk of cases on Hindu law covering all its aspects that they have almost settled the law. In such matters recourse to the original sources is not necessary.