SOURCES OF HINDU LAW
BACKGROUND AND ORIGIN
Hindu law is regarded as the most ancient legal system known. Since the Vedic period is believed to have been between 4000 and 1000 B.C., we can consider Hindu law to be around 6000 years old.
Hindus believe that Hindu law comes from the Vedas, which they consider divine revelations from God. This gives the law a sacred and divine origin. Based on this belief, even rulers or kings are expected to follow the law, just like ordinary people, showing that nobody is above the sacred law.
SOURCES OF HINDU LAW
The sources of Hindu law are generally divided into two categories: the ancient sources and the modern sources, which together contain the seven sources as the main sources of Hindu law.
ANCIENT SOURCES
1. Srutis,
2. Smritis,
3. Commentaries and Digests,
4. Customs,
MODERN SOURCES
1. Judicial decisions,
2. Legislations, and
3. Justice, equity, and good conscience.
ANCIENT SOURCES
SRUTI
Hindu law follows the divine theory of law and is hence considered divine law revealed by God.
The theory suggests that some Hindu sages, who had attained great heights of spirituality, communicated directly with God.
During this communication, the sacred or divine law is believed to have been revealed to them by God himself.
These revelations made by God are said to have been compiled in texts that came to be known as Srutis (Shrutis) or Vedas.
‘Sruti’ comes from the root word ‘Sru,’ meaning ‘to hear.’
So, Srutis refers to what has been heard. When we talk about Srutis as a source of Hindu law, the main focus is on the Vedas, but we should remember that the Vedangas and Upanishads are also part of Srutis.
Srutis are thought to be divine revelations, basically the words of God or deities that were told down to sages. Because of this sacred connection, Srutis are considered the most important and authoritative source of Hindu law.
Among them, the Vedas hold the highest place and are considered the foundation of Hindu law. That’s why Srutis are often called the cornerstone of Hindu law, providing its core principles and guidance.
The Srutis mainly consist of the four Vedas and the Upanishads or Vedantas, both of which contain information relating to religious rites or methods of attaining Moksha (Salvation) or Gyana/Jnana (Knowledge). Vedas and Vedantas are briefly discussed below.
VEDAS
The term ‘Veda’ is derived from the Sanskrit word ‘Vid,’ which refers to knowledge or simply means ‘to know’. Vedas are a collection of poems, Hymns, prayers, etc.
The Vedas are seen as the leading traditional source of Hindu law. Vedas were all composed during the Vedic period. These ancient texts provide a glimpse into the lives of our early ancestors on the Indian subcontinent. They reflect people’s mindset, beliefs, customs, thought processes, and overall way of life during that period, giving us valuable information into how society worked in those times.
The four main Vedas of Hinduism are the Rig Veda, Yajur Veda, Sam Veda, and Atharva Veda. All four Vedas are briefly examined below.
RIG VEDA
The Rig Veda is the oldest and biggest of all the Vedas and is considered the earliest sacred text in Hinduism.
It mainly contains hymns, praises, and prayers to the gods, along with laws and rules about sacrifices, all written in the form of songs.
It’s also important to remember that the Rig Veda is not just one single text but a collection of several different works that were brought together over a period of time.
The Rig Veda is divided into 10 parts, called “Mandalas.” Each Mandala contains a group of mantras known as “Suktas.” In total, there are about 1,028 Suktas. These Suktas further contain 10,552 verses or mantras. These mantras are a vital part of the Rig Veda and are essential to its teachings and rituals.
YAJUR VEDA
The Yajurveda is all about rituals, ceremonies, and mantras.
Its name comes from the Sanskrit word Yaj, which means sacrifice or Yajna.
As the name suggests, it gives step-by-step instructions for performing these rituals and conducting Yajnas. One feature of the Yajurveda is that about 663 verses are actually borrowed from the Rig Veda.
Interpreting the procedures laid down in these Vedas can sometimes be challenging. Therefore, to overcome this hurdle, a comprehensive and elaborate system comprising certain principles of interpretation has been developed to ease the understanding of procedures relating to the performance of yajnas. These principles are known as the ‘Mimansa principles. ’
The Yajur Veda depicts the social and religious life of the people during the Vedic period. It also provides some geographical data. It is further divided into two categories known as the Shukla Yajurveda and Krishna Yajurveda.
SAMA VEDA
Sama Veda is the shortest of all Vedas.
It contains musical prayers, mantras, etc., which are chanted during sacrifices and rituals.
Hence, it is known as the Veda, containing the science of music.
Sama Veda is believed to have been revealed to Rishi (sage) Jaimini, who is said to be the father of this Veda. Only 75 verses of Sama Veda are new, while the rest have been drawn from Rig Veda.
ATHARVA VEDA
The Atharva Veda contains texts dealing with black magic, spells, magic charms, etc.
It is believed to have been composed by Rishi Atharva. It comprises around 20 chapters containing around 730 hymns and 5987 mantras. The origin of Ayurveda is considered to be the Atharva Veda, making it the oldest work available on Indian medicine.
After brief information on the four primary Vedas, we shall move on to the next part of the Vedas, or the extensions of the Vedas, which are known as the Vedangas.
UPANISHADS
The Upanishads are also known as Vedantas. The name comes from two Sanskrit words: Veda, which means knowledge, and Anth, which means end.
The name reflects their position as the concluding sections of the Vedas.
Chronologically, they were written after the main parts of the Vedas, which is why they’re considered the “end” of the Vedas.
The Upanishads contain the highest values or principles of Hindu philosophy and religion. German philosopher Arthur Schopenhauer opined that studying the Upanishads is the most beneficial study in the world.
Sruti, as a custom, has paramount significance since it is believed to be God’s direct revelation and, hence, lays down the foundational principles of Hinduism. The other sources, particularly the Vedas and the Upanishads, are either inspired by or based on Sruti.
SMRITI
The time when Smritis were composed is generally called the golden age of Hindu law.
Smriti comes from a Sanskrit word that means “what was remembered.”
Unlike the Srutis, which are believed to have a divine origin, Smritis are considered to be of human origin.
They are thought to be the recollections or interpretations of laws and practices remembered and recorded by priests or sages, known as Rishis.
Smritis are an essential source of Hindu law, after Srutis, because they focus on life’s legal and societal aspects.
They record customs, practices, and traditions that are considered highly authoritative in shaping Hindu law. Smritis are broad and open to interpretation, making them flexible but also tricky to understand and apply.
Mulla, in his book on Hindu law, states that the ancient law laid down in the Smritis was fundamentally traditional. The demand was that the long-standing institutions and timeless customs be conserved unchanged. He further says that the traditional law was itself based on time-honoured customs.
KINDS OF SMRITIS
Smritis are of two kinds. The division is based on the chronological order of the period they were composed or formulated. The two types of Smritis are primary and secondary; as the name suggests, secondary is formulated later.
The two kinds are known as ‘Dharmasutras’ and ‘Dharmashastras’.
The Dharmasutras are formulated in the prose style, whereas the Dharmashastras are composed in the poetry style.
The two kinds of smritis are briefly discussed below.
DHARMASUTRAS
The primary Smritis written in prose form are called the Dharmasutras. These texts are considered older than the Dharmashastras because they were created earlier. While many Dharmasutras are written entirely in prose, some are a mix of prose and poetic verses. According to Hindu Law by R.K. Agarwal, the Dharmasutras are from approximately 800 to 200 B.C., making them an important early source of Hindu law.
Dharmasutras contain texts about men’s duties in various aspects. They are nothing but compositions made by intellects based on the law laid down in the Vedas, decisions rendered by those well-versed in the law and customs of the inhabitants of the Indian subcontinent.
The names of their authors are generally known as dharmasutras. Some of the prominent authors of Dharmasutras include Gautama, Baudhayana, Apastamba, Vasishtha, Vishnu, and Harita.
The Dharmasutra by Gautama is the oldest, extensively dealing with legal and religious matters.
It also contains text relating to inheritance, partition, and stridhan. He values traditions, practices, and usages.
The Dharmasutra by Baudhayana contains texts about marriage, adoption, inheritance, etc. He refers to various customs in his work.
The Dharmasutra by Apasthamba is regarded as the best preserved. He recognised and considered most of the customs prevalent around that time and regarded the Vedas as the source of all kinds of knowledge.
Dharmasutras are not merely works on Hindu law jurisprudence but also describe ancient legal history and people’s social lives, making them an important source of law and history.
DHARMASHASTRAS
The second type of Smritis, written in the form of poetry or verses, is known as Dharmashastras. These texts are more structured and systematic than the Dharmasutras. Some of the most popular writers of the Dharmashastras include Manu, Yajnavalkya, Narada, Vishnu, Devala, Vrihaspati, Katyayana, and Vyasa.
The majority of the Smritis is divided into three parts: the Acharya Adhyaya, the Vyavahara Adhyaya, and the Prayaschita Adhyaya. Acharya Adhyaya deals with laws relating to rituals, Vyayahara Adhyaya contains civil law, and Prayaschita Adhyaya comprises patacas, mahapatakas, and upapatakas, which refer to various types of sins. It also includes ideas concerning self-awareness and knowledge.
Out of all the Dharmashastras or smritis composed or authored by various prominent authors, Manusmriti and Yajnavalkyasmriti are the most popular and important ones. Both Manusmriti and Yajnavalkyasmriti are briefly discussed below.
MANUSMRITI
The majority of Hindu sages and commentators have always regarded the Code of Manu or the Manusmriti as the smriti bearing principal authority. Brishaspati suggests that Manusmriti holds the fundamental position since the author wrote it in the whole sense of the Vedas. He further suggests that no other smriti is as authoritative as this one and neither contradicts it.
Manusmriti is the oldest smriti, dating its composition to 200 B.C.E. as suggested by Maxiller, and is considered a repository of law with 12 chapters and around 2700 shlokas. Although, the work as a whole deals with various subject matters, the relevant legal part of the smriti related to 18 topics of law which include Debt, pledge, sales, partnerships, wages, agreements, boundary disputes, master and servant, husband and wife relationships, partitions and inheritance, betting and gambling, assault, defamation, battery, theft, robbery, and adultery.
Manusmriti is often criticised for the harsh opinions and views of the author towards women and other individuals from castes that are regarded as lower ones, commonly referred to as Shudras.
The majority of the opinions and views he presented and the theories or doctrines he formulated are orthodox.
YAJNAVALKYA-SMRITI
Yajnavalkya smriti is the second most fundamental smriti after Manusmriti. It is believed to have been composed around the second century A.D., roughly at the beginning of the Christian era.
Professor Stenzler opined that Yajnavalkya’s work was mostly based on and inspired by Manu’s. However, Yajnavalkya’s smriti is more dynamic, progressive, structured, concise, and logical than Manusmriti.
Yajnavalkya Smriti contains 1010 shlokas. These shlokas are divided into four categories, which are listed as follows.
Achara
Vichara
Vyavahara
Prayaschita
The first category i.e., Achara contains texts relating to marriages. The other parts of the smriti contain texts on court proceedings, sale, theft, adultery, defamation, assault,partisions, etc. The smriti contains rules and procedures in a detailed manner when compared to other smritis.
During the British period, the administration of courts and adjudication of matters relating to Hindu law were based on Yajnavalkya-smriti.
A few of the critical commentaries written on Yajnavalkya Smriti include the following.
Mitakshara by Vijnaneshwara in 1100 A.D. – The most widespread and the most critical commentary.
Balakrida by Viswarupa in 900 A.D. – Earliest commentary.
Aparaditya by Apararka in 1200 A.D. – Paramount significance in Kashmir.
Among the three commentaries mentioned above, Mitkashara is the most prominent one. In fact, the commentary Mitakshara gives Yajnavalkya-smriti great significance. The commentary discusses or explains the smriti in a simplified manner and in harmony with the prevalent practices.
NARADASMRITI
Naradasmriti was composed around the 2nd to 4th century A.D. It empowers the king to make laws but states that such a power must be exercised by acting within the limits of and based on Vedic principles and customary practices.
It further adopts a liberal view towards women and Shudras.
It deals merely with civil law, i.e., Vyavahara.
It is broadly based on Manusmriti and Yajnavalkya-smriti but differs on some issues.
It is the most structured and exhaustive smriti on rules of law. It deals with procedural law with great clarity. One of the most popular commentaries on Naradasmriti is Narada Bhasya by Ashaya. Narada gave great importance to customs, suggesting that customs decide everything and can even override the sacred law.
Smritis, as a source of Hindu law, is also of fundamental importance next to Sruti due to the nature of the information contained in these texts. Smritis contains texts that largely relate to the legal aspects of society; in fact, it contains more information about legal aspects than the Srutis. Therefore, Smritis serves as a great source for the development of Hindu law.
CUSTOMS
Customs are regarded as the root or architect of any personal law across the globe. India is no different, especially when the Indian history is rich in diverse customs, usages and practices.
Customs are one of the most essential sources of any law, including Hindu law. Custom is presumed to be based on unrecorded or undocumented revelations whose ancient writers insist on observance. It has the effect of modifying or diverting from the conventional or general personal law but does not overrule the statutory law.
ESSENTIALS OF CUSTOM
For a norm or practice to be recognized as a custom and take the form of law, it must meet specific criteria: it must be ancient, confident, reasonable, and have been followed continuously.
The Hon’ble High Court of Madras highlighted this principle in the case of Deivanai Achi vs. Chidambaram (1953). The court observed that a custom must show the essential qualities of certainty, antiquity, and reasonableness for a custom to become law.
In the case of Ratanlal alias Babulal Chunnilal Samsuka vs. Sundarabai Govardhandas Samsuka (D) through her LRs (2017), the Supreme Court of India also supported the views of the Madras High Court. The Court said that for a custom to be valid, it must be certain, have been practiced for a long time, be continuous, and be reasonable. But, the Court also made it clear that any immoral custom, goes against public policy, or breaks a law can’t be accepted as valid
As highlighted in the earlier decisions, antiquity, reasonableness, and certainty are the three key elements determining whether a practice can be recognized as a valid custom. These factors ensure that the custom is deeply rooted in tradition and is practical and consistent over time. However, the said three are not the only essentials of a custom. The essentials for a custom to be valid are as follows;
Ancient;
Certainty/Invariability and continuity;
Unambiguous evidence to establish the proof;
Reasonability;
It must not be opposed to morality or public policy;
Any enactment of the legislature must not expressly prohibit it.
KINDS OF CUSTOMS
Although there are innumerable customs across the country, they can be classified into a few kinds depending upon various factors, mainly based on followers, territory, etc. Hindu law generally recognises three types of customs, which are as follows:
Local Custom,
Class Custom, and,
Family Custom.
THE AFOREMENTIONED THREE KINDS OF CUSTOMS ARE DISCUSSED BRIEFLY BELOW.
1. LOCAL CUSTOMS
Local customs are those that are limited to a particular locality or district and binding on its inhabitants.
2. CLASS CUSTOM
Class customs are those that belong to and are observed or followed by a caste, sect, community, or by the followers of a particular profession or occupation, such as agriculture, trade, mechanical, art, and similar professions. Class customs, which include caste or community customs, cover the majority of the customs in Hindu personal law.
3. FAMILY CUSTOM
Family customs relate to a particular family, specifically concerning the succession to an impartible succession to monasteries or religious foundations.
DIGEST AND COMMENTARIES
The enormity of various Smritis and the distinctions among them led to the insignificance, incompleteness, and contradiction within the rules and procedures prescribed in Smritis.
Accordingly, it was felt necessary to have a coordinated and harmonised work on Smritis to ensure a uniform and undisputed interpretation of the directions or statements prescribed in Smritis.
Such harmonised work was also required to adapt and conform to the prevalent customs, practices, and usages across the countries. Therefore, such necessity led to the composition or the constitution of the ‘Commentaries’, which serve as one of the most significant sources of Hindu law.
Digests and Commentaries are of paramount significance due to their inculcation and records of traditional or ancient customs and new customs that evolved with time and were believed to be worthy of recognition as a source of law. The digests and commentaries based on the texts of Smritis and Srutis modified, elucidated, and broadened the traditions, customs, and practices to harmonise and conform them with the prevalent practices and usages to fulfil the necessities that developed with the changing times.
It is important to know that commentaries do not prescribe law by themselves but are mere explanations and interpretations of the law laid down in the ancient texts.
The Privy Council noted this in Balwant Rao vs. Baji Rao (1920), where the Court observed that commentaries and digests do not enact the law but explain and provide evidence of the customs that constitute the law.
One of the principal differences between a digest and a commentary is the source of it or the number of smritis on which the work is based. A digest is like a collection of commentaries on different Smritis put together in one book, while a commentary usually focuses on explaining just one Smriti. Before the 12th century, most commentaries were based on a single Smriti. But after the 12th century, the approach changed, and commentaries started covering multiple Smritis. These combined works became known as Digests or Nibandhs.
Digests and commentaries were mostly written between 700 A.D. and 1700 A.D. The last commentary, ‘Vaijayanti,’ was authored by Nanda Pandit.
The following are the predominant commentaries written by various commentators.
Dayabhaga’, authored by ‘Jimutavahana’.
‘Mitakshara’, authored by ‘Vijnaneshwara’ on Yajnavalkya Smriti in 1100 A.D.
‘Viramitrodaya’, authored by ‘Mitra Misra’ in the 17th century in western India.
‘Vivada Chintamoni’, authored by ‘Vachaspati Misra’ in the 15th century in the Mithila language.
‘Vivada Ratnakara,’ authored by ‘Chandeshwara’.
‘Dayatattwa’ by ‘Raghunandana’.
‘Dayakramasangraha’ authored by ‘Sri Krishna Tarkalankar’.
‘Smriti Chandrika’ was authored by ‘Devan Bhatta’ in 1200 A.D in southern India.
Parashara Madhaviya, authored by Madhavachara on Parashara Smriti.
‘Vyavahara Mayukha, ’ authored by ‘Nilkantha Bhatt. ’
Out of all the commentaries mentioned above, Mitakshara and Dayabhaga occupy a commanding position in India from the acceptability of their authenticity as the sources of Hindu law.
THE TWO COMMENTARIES ARE DISCUSSED IN BRIEF AS FOLLOWS.
MITAKSHARA
Mitakshara is one of the most critical commentaries written by Vijnaneshwara on the Yajnavalkya Smriti, and it holds a significant place in Hindu law across India.
It’s not just a commentary that explains the verses of the Yajnavalkya Smriti; it’s also considered a digest of various Smritis.
This commentary is regarded for the application of Hindu law across the territory of India except the states of Bengal and Assam.
Nevertheless, it is also considered while dealing with specific aspects where the opinion in the Mitakshara commentary accords with the views stated in the Dayabhaga commentary. Mitakshara covers almost all the elements of Hindu law, including the rules of succession, coparcenary, partition, debt, and Stridhan.
Moreover, a school of Hindu law has also been established that runs according to the laws, rules, and procedures prescribed in the Mitakshara commentary. The school has been named after the commentary and is therefore known as the Mitakshara school of Hindu law.
DAYABHAGA
Dayabhaga holds great value in the states of Bengal and Assam. It is, in fact, the primary commentary in the state of Bengal.
The significance of this commentary in these two states is the same as that of the Mitakshara commentary in the rest of the Indian territory.
The Dayabhaga, written by Jimutavahana, mainly focuses on issues related to inheritance and partition.
Unlike Mitakshara, it takes a different approach to a son’s rights in coparcenary property and the rules around partition.
The Dayabhaga is considered an essential text on partition, inheritance, and Stridhan, especially in Bengal.
It stands out as one of the most influential works in Indian legal history, shaping the principles of Hindu law in the region.
MODERN SOURCES
LEGISLATIONS
Legislation, including Hindu law, is the most prominent and concrete source of any legal area.
It is one of the modern sources of law that has played a significant role in the development and evolution of Hindu law.
Most of the legislation in Hindu law is enacted based on the fundamental principles laid down in the ancient sources of Hindu law.
However, many legislations are passed with an inclination towards reforming Hindu law. A few legislations are also quite different from the ancient texts of Hindu law and replace them.
Several important legislations have been enacted since the British period, contributing immensely to the development and evolution of Hindu law.
Many of those legislations have also attempted to reform Hindu law.
These legislations brought about numerous changes in the ancient practices and rules of Hindu law, forming a cardinal modern source of Hindu law.
The crucial legislations enacted and integrated, reformed, modified, and supplemented the existing ancient sources of Hindu law and can be viewed into two categories based on their period of enactment. The first category can be classified to include the legislations enacted before the independence, i.e., during the British rule or the British period by the British. In contrast, the second category can be classified to include the legislations that the Indian Parliament enacted after the independence. Therefore, on the said basis, the legislation can be classified as pre-independence and post-independence.
PRE-INDEPENDENCE LEGISLATIONS
Several important legislations were enacted in the pre-independence era. Legislation formulated during the British period played a prominent role in reforming and modifying Hindu law in India.
Some of the significant legislations enacted during British rule are briefly discussed below.
THE CASTE DISABILITIES REMOVAL ACT, 1850 (THE FREEDOM OF RELIGION ACT)
The Caste Disabilities Removal Act, 1850, was a significant step towards ensuring freedom of religion. This Act dealt with the law of inheritance under Hindu law.
It protected the right to inheritance of individuals who renounced their faith.
The general rule or notion as per Hindu law was that an individual would lose his/her right to inheritance if he/she renounced or changed his/her religion.
This Act reformed this aspect of Hindu law and modified the existing rule. According to this law, a person would not be deprived of his/her rights to inheritance on renunciation of his/her religion or losing of his/her caste.
It abated all the laws that deprived an individual of his inheritance rights due to renunciation of caste or religion.
THE HINDU WIDOWS’ REMARRIAGE ACT, 1856
The Hindu Widows’ Remarriage Act, 1856, was one of the most progressive legislations of the British period, which was enacted with the objective of protection women’s rights.
It legitimised widow remarriage in the Hindu society in certain instances, which was earlier not the case, and it also declared the rights and disabilities of widows on remarriage.
The Act declared any custom or interpretation of Hindu law contrary to this Act invalid. The Act also secured the right to inheritance of widows and the right to the property to which she was otherwise entitled.
It, however, provided that a widow would lose her right to her husband’s property by her remarriage.
The legislation also contained a provision relating to the remarriage of a minor widow. As per the ancient practices and rules, widows were generally not entitled to the right to remarry someone after their husband’s death, and this legislation brought about reformation in this practice, securing the rights of widows.
THE INDIAN SUCCESSION ACT, 1865
The Indian Succession Act, 1865 prescribed the law relating to intestate and testamentary succession in India.
However, one of its provisions exempted the wills made by Hindus, Sikhs, Buddhists, and Jains from its application.
The effect of the said provision was later nullified by the Hindu Wills Act, 1870. This Act was later replaced by the Indian Succession Act, 1925.
THE SPECIAL MARRIAGE ACT, 1872
The Special Marriage Act, 1872, dealt with the area or aspect of marriage and aimed to govern the marriages of individuals who could not be governed under Hindu law due to their non-profession of Hindu faith or religion and certain faiths and religions that were expressly provided in this Act, such as Islam and Christianity.
It legalised marriage for atheists and those who did not profess or practise the Jewish, Christian, Muslim, Hindu, Sikh, Jain, Buddhist, or Parsi faith or religion. It prescribed certain conditions that a marriage must fulfill for it to be valid.
It also prescribed the procedure for registering a marriage of the kind discussed in the Act. Later, an amendment was made to this Act in 1923, and the Act was replaced by The Special Marriage Act, 1954, which is currently in force and provides the validity of an interreligious marriage as well.
THE INDIAN MAJORITY ACT, 1875
The Indian Majority Act 1875 was enacted to prescribe a certain age as the age of majority for various legal purposes.
The Act, however, expressly provided that its provisions would not have any effect on the capacity of any individual in respect of matters relating to marriage, divorce, dower, adoption, and performance of religious rights or particularly upon the religion of the individual. Although the legislation did not prescribe a uniform age of individuals for all matters, it paved the way for considering a certain age of any individual as the age of majority, which was absent in ancient Hindu law.
THE TRANSFER OF PROPERTY ACT, 1882
The Transfer of Property Act, 1882, was enacted to regulate and prescribe the law relating to the transfer of property across India. It replaced Hindu law relating to the transfer of property.
For example, it governed the alienation of property by an individual practising the Hindu religion or faith, irrespective of the school of Hindu law followed by such an individual.
The legislation consolidated the law relating to property affairs and applied universally to individuals from all religions. Therefore, this enactment also significantly influenced the Hindu law relating to property. Moreover, various amendments have been brought into the Act according to societal changes and are still in force. Hence, it is one of the significant enactments that form a modern source of Hindu law.
THE GUARDIANSHIP AND WARDS ACT, 1890
The Guardianship and Wards Act, 1890 dealt with the appointment of guardians by the Court. The guardianship was deeply interconnected with the aspects of patriarchy, with fathers regarded as the sole guardians of their children, having complete authority over the affairs of their children’s lives, such as education, marriage, property, religion, etc. Such legal guardianship rights weren’t given to women based on the assumption that they lacked independent identity and were controlled by their husbands, who were the supreme authority.
Moreover, in some parts of ancient Hindu law, the King was regarded as the guardian of all minors within their kingdom. However, this law enlarged the possibility of having different individuals as a child’s guardian, apart from the conventional ones. According to this Act, the court could have appointed specific individuals as the guardian of a child. It enabled the relative, friend, the collector of a province of any person desirous of being a guardian to become one. However, the appointment of such guardians was subjective to the provisions of the Act, including proper scrutiny. Hence, this legislation attempted to modernize Hindu law by bringing about significant changes in the law relating to guardianship.
The Hindu Disposition of Property Act, 1916
The Indian Succession Act, 1925
The Indian Succession Act, 1925, can be considered legislation enacted in continuation of the other enactments that prescribed the law concerning the affairs relating to property in Hindu law. It can also be regarded as part of the same series of enactments. This enactment repealed and replaced two existing laws, namely the Indian Succession Act, 1865, and the Hindu Wills Act, 1870.
It made changes to the Hindu law relating to Wills. It can be considered complementary and aiding legislation to the Hindu Disposition of Property Act, 1916. It is because, after the enactment of this Act, the disposition of property by an individual to another, when done through wills, was governed by the provisions of this Act. However, the continuation of the 1916 legislation cannot be regarded as the only objective of this Act.
This enactment also consolidated the intestate and testamentary succession law and was uniformly applicable to all Indians. It governed every individual by a uniform set of rules and laws, irrespective of the diversity and the differences among the Hindu community across the country. It was amended several times to make further changes as and when required.
The Hindu Inheritance (Removal of Disabilities) Act, 1928
The Hindu Law of Inheritance (Amendment) Act, 1929
The Child Marriage Restraint Act, 1929
The Child Marriage Restraint Act, 1929, was the first and foremost legislation on the prohibition and criminalisation of child marriage in India. There existed and continues to exist a long-standing and common practice of child marriage across the country, irrespective of faith and religion. This Act’s fundamental objective was to prohibit and penalise the practice of child marriages across the country, including among the communities practising the Hindu faith or religion. It prescribed an age of 18 years for a male individual and 14 years for a female individual; any person below the said age was a ‘child’ as per the provisions of this Act.
It was first amended by the Child Marriage Restraint (Amendment) Act, 1938, to extend its scope and application. It was again amended by the Child Marriage Restraint (Amendment) Act, 1978, through which the legal age for marriage was increased. The Act was a stepping stone towards the modernisation of not just the Hindu law but also Indian society. Therefore, it forms a key modern source of Hindu law. This Act has now been repealed and replaced by the Prohibition of Child Marriage Act, 2006, which currently deals with the prohibition and criminalisation of child marriage in India.
THE HINDU GAINS OF LEARNING ACT, 1930
The Hindu Gains of Learning Act, 1930, was enacted to eliminate doubts and prescribe a uniform law on the rights of an individual in a Hindu Undivided Family (HUF) with respect to the property acquired by him by means of learning or education. It was based on the concept of ‘Vidyadhana,’ which is also mentioned in the ancient texts of Hindu law.
The term or concept of ‘Vidyadhana’ refers to the wealth/property of education. It is made up of two separate words, ‘Vidya’ and ‘Dhana,’ which respectively mean education or learning and wealth or property. According to this concept, a person becomes the sole and absolute owner of a property if he acquires such property by learning.
This enactment provided that a property acquired by a coparcener by means of learning becomes a self-acquired property, implying that he has absolute and sole rights over it. Therefore, this Act is one of the essential modern sources of Hindu law as it codified, legally recognised, and enforced a practice of Hindu law in the form of legislation.
THE HINDU WOMEN’S RIGHT TO PROPERTY ACT, 1937
The Hindu Women’s Right to Property Act, 1937, was enacted mainly to make changes to the existing Hindu law to give women better property rights. The Hindu Women’s Right to Property (Amendment) Act, 1938 amended it the next year, which made minor changes to the original enactment. This enactment gave a widow her entitlement to her deceased husband’s property, which was earlier given only to the son. It provided that the widow of a deceased Hindu would inherit the property along with other lineal descendants in the same manner as the son of the deceased individual would have inherited it. One of the landmark legislations laid the foundation for women’s rights in Hindu law. Hence, it is one of the most critical legislations, which can be regarded as a key contemporary source of Hindu law.
THE ARYA MARRIAGE VALIDATION ACT, 1937
The Arya Marriage Validation Act, 1937, is another critical legislation that changed the ancient Hindu law concerning marriage norms and became a contemporary source of Hindu law. This law recognised the validity of intercaste, inter-subcaste, or even inter-religious marriages. As per the traditional Hindu customs and usages, marriages used to take place only within a caste or subcaste, and a marriage between two individuals belonging to different castes or different sub-castes was considered invalid. However, this law provided that no marriage would be invalid merely because the individuals belonged to different castes, sub-castes, or religions. The Act played a prominent role in the modernisation of Hindu law.
POST-INDEPENDENCE LEGISLATION
Most of the legislations enacted after independence were majorly in the form of a consolidation of the pre-independence legislations or an amendment to the existing legislations.
Post-independence legislation was passed by drawing inspiration and direction from the pre-independence legislation. Nevertheless, timely changes have been made in the legislations enacted after independence to ensure the conformation of laws with the societal changes. Moreover, Hindu law has been mainly consolidated and codified into four major enactments,which are henceforth discussed. Some crucial legislations that can be regarded as the contemporary and the most recent sources of Hindu law are discussed below.
The Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1949
The Hindu Marriages Validity Act, 1949
The Special Marriage Act, 1954
The Hindu Marriage Act, 1955
The Hindu Marriage Act, 1955, is one of the four most fundamental and concrete legislations of Hindu law, which provides the law concerning marriages in the Hindu society.
It amended and consolidated the concepts relating to marriage under Hindu law available in the various ancient texts, works, and legislations formulated and enacted before independence and codified them into a new enactment.
It provides conditions, procedures, ceremonies, and marriage registration under Hindu law. The Act does not expressly give any specific ceremonies but provides that a marriage shall take place according to the customary rituals and ceremonies of the individuals. However, it expressly mentions Saptapadi as one of the ceremonies, making it an essential ceremony for a Hindu marriage.
The Hindu Marriage Act, 1955, introduced various new concepts and changes in the conventional and ancient Hindu law.
It includes the concepts of judicial separation, restitution of conjugal rights, and, most importantly, the concept of divorce, which was available in ancient Hindu law.
According to the traditional Hindu law, customs, and practices, marriage is a sacrament, and hence divorce was not regarded as an option. It introduces divorce as a part of contemporary Hindu law and prescribes various grounds for divorce.
The Hindu Minority and Guardianship Act, 1956
The Hindu Succession Act, 1956
The Hindu Adoption and Maintenance Act, 1956
The Child Marriage Restraint (Amendment) Act, 1978
The Marriage Laws (Amendment) Act, 1976
The Hindu Succession (Amendment) Act, 2005
The Prohibition of Child Marriage Act, 2006
JUDICIAL DECISIONS
The doctrine of stare decisis, which means “stand by the things decided,” introduced by the British administration, played a significant role in the evolution of Hindu law and law in general in India, forming judicial precedents as a prominent source of law.
According to this doctrine, the decisions rendered by the Supreme Court are binding upon all the lower courts, including High Courts, but the Apex Court itself is not strictly bound by it and can change the law or interpretations. Similarly, the decisions rendered by the High Courts are binding upon the subsequent subordinate courts, but such decisions do not bind other High Courts.
JUSTICE, EQUITY AND GOOD CONSCIENCE
Equity is synonymous with equitable treatment, and contemporary judicial systems largely depend on maintaining impartiality. This legal concept is firmly rooted in the principles of Justice, Equity and Good Conscience.
Where the ancient sources do not explain a specific aspect, the same is governed by the principles of Justice, Equity and Good Conscience.
In Gurunath v. Kamalabai (1951), SC held that in the absence of any existing Hindu Law, Judges have the authority to decide the cases on the principle Justice, Equity and Good Conscience.