Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India. Hindu law, in modern scholarship, also refers to the legal theory, jurisprudence and philosophical reflections on the nature of law discovered in ancient and medieval era Indian texts. The book is split into three parts. The first part focuses on the historical and conceptual background of Hindu law, while the second part concentrates on five facets of Hindu law that go beyond tradition and modernity, namely the Hindu marriage law, child marriage, polygamy, divorce, and the maintenance law.

The phrase “source of law” has several connotations. It may be the authority which issues rules of conduct which are recognized by Courts as binding. In this context, ‘source of law’ means ‘the maker of law’. It may mean the social conditions which inspires the making of law for the governance of the conditions..

Sources of Hindu Law: A critique

“Hindu law has the oldest pedigree of any known system of jurisprudence, and even now it shows no sign of decrepitude.”- Henry Mayne.

The phrase “source of law” has several connotations. It may be the authority which issues rules of conduct which are recognized by Courts as binding. In this context, ‘source of law’ means ‘the maker of law’. It may mean the social conditions which inspires the making of law for the governance of the conditions. In this context it means ‘cause of law’. It may also mean in its literal sense the material from which the rules and laws are known. In this sense the expression means the ‘evidence of law’ and it is in this sense that the expression ‘source of law’ is accepted in Jurisprudence.
Vijnaneshwar (commentator on the Yajnavalkya Smriti and founder of Mitakshara School) has called it Jnapak Hetu i.e., the means of knowing law. It is important to study the sources of law because in every personal legal system only that rule is law which has place in its sources. A rule not laid down or not recognized in the sources is not a rule in that legal system.
The word ‘Hindu’ first appeared in the Old Persian language which was derived from the Sanskrit word Sindhu, the historic local designation for the Indus River in the north-western part of the Indian subcontinent. A Hindu is an adherent of Hinduism.
Hindu law is a set of personal laws governing the social conditions of Hindus (such as marriage and divorce, adoption, inheritance, minority and guardianship, family matters, etc.). It is not Hindus alone who must follow Hindu law but there are several other communities and religious denominations that are subject to its dominion such as Jains, Buddhists, Sikhs, Brahmo-Samajists, Prarthana-Samajists, the Virashaivas and Lingayats and the Santhals of Chhota Nagpur besides others.
In Sir Dinshah F.Mulla’s ‘Principles of Hindu Law’, the learned editor has defined ‘Hindu law’ in the following words: “Wherever the laws of India admit operation of a personal law, the rights and obligations of a Hindu are determined by Hindu law, i.e. his traditional law, sometimes called the law of his religion, subject to the exception that any part of that law may be modified or abrogated by statute.” Law as understood by Hindus is a branch of dharma.
Nature and scope: In the present article, the scope will be restricted to finding out the sources of Hindu law, and critique on some of the definitional aspects of the sources and a general critique of the sources.

Sources of Hindu Law
The sources of Hindu law can be classified under the following two heads:
I. Ancient Sources
Under this would come the following:
(i) Shruti
(ii) Smriti
(iii) Digests and Commentaries and
(iv) Custom.
II. Modern Sources
Under this head would come:
(i) Justice, equity and good conscience
(ii) Precedent, and
(iii) Legislation.
Ancient Sources
(i) Shruti-
It literally means that which has been 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 the divine revelation through the sages.
The synonym of shruti is veda. It is derived from the root “vid” meaning ‘to know’. The term Veda is based on the tradition that they are the repository of all knowledge. There are four Vedas namely, Rig Veda (containing hymns in Sanskrit to be recited by the chief priest), Yajurva Veda (containing formulas to be recited by the officiating priest), Sama Veda (containing verses to be chanted by seers) and Atharva Veda (containing a collection of spells and incantations, stories, predictions, apotropaic charms and some speculative hymns).
Each Veda has three parts viz. Sanhita (which consists mainly of the hymns), Brahmin (tells us our duties and means of performing them) and Upanishad (containing the essence of these duties). The shrutis include the Vedas along with their components.
(ii) Smritis-
The word Smriti is derived from the root “smri” meaning ‘to remember’. Traditionally, Smritis contain those portions of the Shrutis which the sages forgot in their original form and the idea whereby they wrote in their own language with the help of their memory. Thus, the basis of the Smritis is Shrutis but they are human works.
There are two kinds of Smritis viz. Dharmasutras and Dharmashastras. Their subject matter is almost the same. The difference is that the Dharmasutras are written in prose, in short maxims (Sutras) and the Dharmashastras are composed in poetry (Shlokas). However, occasionally, we find Shlokas in Dharmasutras and Sutras in the Dharmashastras. In a narrow sense, the word Smriti is used to denote the poetical Dharmashastras.
The number of Smriti writers is almost impossible to determine but some of the noted Smriti writers enumerated by Yajnavalkya (sage from Mithila and a major figure in the Upanishads) are Manu, Atri, Vishnu, Harita, Yajnavalkya, Yama, Katyayana, Brihaspati, Parashar, Vyas, Shankh, Daksha, Gautama, Shatatapa, Vasishtha, etc.
The rules laid down in Smritis can be divided into three categories viz. Achar (relating to morality), Vyavahar (signifying procedural and substantive rules which the King or the State applied for settling disputes in the adjudication of justice) and Prayaschit (signifying the penal provision for commission of a wrong).
(iii) Digests and Commentaries-
After Shrutis came the era of commentators and digests. Commentaries (Tika or Bhashya) and Digests (Nibandhs) covered a period of more than thousand years from 7th century to 1800 A.D. 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 evolution of the different schools of Hindu law has been possible on account of the different commentaries that were written by various authorities. The original source of Hindu law was the same for all Hindus. But schools of Hindu law arose as the people chose to adhere to one or the other school for different reasons. The Dayabhaga and Mitakshara are the two major schools of Hindu law. The Dayabhaga school of law is based on the commentaries of Jimutvahana (author of Dayabhaga which is the digest of all Codes) and the Mitakshara is based on the commentaries written by Vijnaneswar on the Code of Yajnavalkya.
(iv) Custom-
Custom is regarded as the third source of Hindu law. From the earliest period custom (‘achara’) is regarded as the highest ‘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 is a principle source and its position is next to the Shrutis and Smritis but usage of custom prevails over the Smritis. It is superior to written law. There are certain characteristics which need to be fulf

Hindu Law: Texts And Materialshome