“Clear proof of usage will outweigh the written text of Law.” Comment and state whether custom is still a source of modern Hindu Law?
Category : Family Law – I
What are the various sources of Hindu Law? To what extent custom still continuous to be important source of Hindu Law? Illustrate your answer
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.
1. 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.
2 MODERN SOURCES: – Following are the modern sources of Hindu Law :- 1. Equity, justice and good conscience. 2. Precedents 3. Legislation.
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. 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.”
2. SMRITIS :-Means ,”What was remembered” thus smritis were Smritis is 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.
Smritis are divided into two :
i) Dharam Surtra :- Dharam sutra are famous of Gautam, Buddhyan, Apastamb, Harit, Vishnu and Vasith.
ii) Dharam Shashtra :- 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.
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 -1935: 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 Vajanty written by Nand Pandit.
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.” Case: Collector of Madurai v/s Mottaramlingam -1868: 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 o a long tradition.” 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 be prevailing custom or usage and a married male of 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. Hindu sages have recognised good custom binding on the Hindu. Manu says, “ In memorial is transcendent Law.” Custom is divided in three parts:- i) Local custom ii) Class custom iii) Family custom.
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 their is lack of lawful rules, their the decision should be on the principles of equity, justice and good conscience.
Case : Gurmukh Singh v/s Kamla Bai -1951: It was held that, “ Where their 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.
6. PRECEDENT :- It is an important source of law. It means he Judicial decision over any disputed matter which shall be guideline for the disposition of future similar disputed matters. Generally the decision of Supreme Court, High Court, 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, it is pertinent to mention here that there are certain rules for the application of precedent like :- 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. Case: Pandurang Kalu Patil v/s State of Maharashtra-2002. 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. Today most of the subjects of Hindu Law has been codified. Some of the important Acts in this respect are :- 1. Hindu Widow Remarriage Act 1856. 2. Prevention of Child Widow Act. 1929. 3. Hindu Women’s right to Property Act. 1930. 4. Hindu Women’s right to Seperate Residence and Maintenance Act 1946. 5. Hindu Succession Act 1956 6. Hindu Marriage Act. 1955 7. Hindu Adoption & Maintenance Act. 1956 8. Hindu Minority and Guardianship Act 1956.