Sources of Hindu Law

In one minute

The sources of Hindu law are the places where its rules come from. Old sources are the Vedas, the law books, the commentaries and custom. Modern sources are Acts of Parliament, court decisions and equity.

Today the Acts of 1955 and 1956 come first. Custom and the old texts apply only where an Act is silent or expressly keeps them. Exams ask for the list of sources and for the rule that proved custom beats the written text.

Legal provision

No single section lists the sources. These provisions decide how they rank.

• Section 3(a), Hindu Marriage Act, 1955: "custom" and "usage" mean a rule that has been continuously and uniformly observed for a long time and has obtained the force of law in a local area, tribe, community, group or family. The rule must be certain and not unreasonable or opposed to public policy. A family rule must not have been discontinued by the family.
• Section 4, Hindu Marriage Act, 1955: any old text, rule, interpretation, custom or usage stops having effect on a matter the Act covers. Section 4 of the Hindu Succession Act, 1956 says the same for succession.
• Article 13(3)(a), Constitution: "law" includes custom or usage having the force of law in India. So a custom must also respect the fundamental rights.
• Article 141, Constitution: the law declared by the Supreme Court binds all courts in India.

Meaning and definition

A source of law is the origin of a legal rule. Hindu law has a long history, so its sources fall into two layers. The ancient layer was shaped over many centuries. The modern layer is made by the State and the courts.

• Sources of Hindu law
  • Ancient sourcesShruti, Smriti, commentaries and digests, custom.
  • Modern sourcesLegislation, judicial precedent, justice, equity and good conscience.

Detailed explanation

Step 1: Shruti (what was heard)

Shruti means "that which was heard". It covers the four Vedas, with the Brahmanas and Upanishads attached to them. Tradition treats it as divine and the highest authority. It is mostly religious and ritual in content, so courts rarely use it for civil questions. Its value is historical.

Step 2: Smriti (what was remembered)

Smriti means "that which was remembered". These are the law books of sages who wrote down the rules of conduct. There are two groups.

• Dharmasutras: early prose texts, such as those of Gautama, Baudhayana, Apastamba and Vasishtha.
• Dharmashastras: later verse texts, mainly the Manusmriti and the Yajnavalkya Smriti.

Where Smritis disagreed, later scholars tried to reconcile them. That work produced the commentaries.

Step 3: Commentaries and digests (Nibandhas)

Commentaries explain one Smriti. Digests collect and arrange the rules from many. The two works that matter most are the Mitakshara of Vijnaneshwara, a commentary on the Yajnavalkya Smriti, and the Dayabhaga of Jimutavahana. Each grew into a school of Hindu law, and separate notes explain the schools.

Step 4: Custom

Custom is a practice followed so long and so evenly that people feel bound by it. Section 3(a) gives the test. The custom must be:

• ancient and continuously observed,
• uniform and certain,
• reasonable, and not against public policy,
• for a family custom, not discontinued by the family.

The person who relies on a custom must prove it. A custom is local, family or class based. Custom and usage can even override the written text, which the Ramnad case below shows.

Step 5: Legislation

Since the 1950s Parliament has codified most of the subject. The four main Acts are the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956. For any matter these Acts cover, the Act is the first and controlling source. Older rules are displaced by section 4.

Step 6: Judicial precedent

A decision of the Supreme Court binds every court in India (Article 141). A High Court decision binds courts below it in the same State. Precedent matters when an Act uses a word loosely or leaves a gap. The principle of following earlier decisions is called stare decisis (let the decision stand).

Step 7: Justice, equity and good conscience

If no Act, custom or binding decision covers a problem, a court decides by fairness and reason. This is a last resort. Equity and good conscience filled many gaps before the Acts came.

Exceptions and special rules

Ranking of the sources today

1. A codifying Act comes first for the matters it covers (section 4).
2. Custom applies where the Act itself saves it. Examples are customary ceremonies in section 7 and customary divorce in section 29(2) of the Hindu Marriage Act.
3. Precedent explains and fills the Act.
4. The old texts and equity help where the above are silent.

Limits on custom

A custom cannot override an Act that has no saving for it. It must also not violate a fundamental right, because Article 13(3)(a) treats custom as law.

Don't confuse: Shruti, Smriti and commentaries

Point	Shruti	Smriti	Commentaries and digests
Meaning	What was heard: the Vedas	What was remembered: the law books	Explanations and collections of Smriti rules
Authority	Highest, treated as divine	High, based on Shruti	Used to settle conflicts between Smritis
Use in courts	Very little	Little, through commentaries	Mitakshara and Dayabhaga still guide property law
Example	Rig Veda	Manusmriti	Mitakshara

Common mistakes

• Calling the Manusmriti a Veda. It is a Smriti.
• Writing that custom is weaker than the written text. Proved custom can override it.
• Forgetting that an Act ends any custom on a matter it covers, unless the Act saves the custom.
• Listing legislation only. Precedent and equity are also sources.
• Skipping the section 3(a) test when you describe custom.

Apply it

Problem

A community in Telangana has for 200 years allowed a panchayat to dissolve a marriage by a simple deed. A relative says the old texts do not allow divorce. A husband now relies on a panchayat deed to end his marriage. Does the community rule count?

Issue

Can a proved custom of dissolving marriage stand against a contrary Shastric text and the Hindu Marriage Act?

Rule

Section 3(a) tests the custom. Section 29(2) of the Hindu Marriage Act saves any right to dissolve a Hindu marriage that custom recognises. In the Ramnad case the Privy Council held that clear proof of usage outweighs the written text.

Application

The husband must prove the practice by many instances over a long time. It must be certain, reasonable and not against public policy. Section 29(2) then protects it from the Act. The court also checks fundamental rights, because custom is law under Article 13(3)(a).

Conclusion

If the community proves the custom, the dissolution can stand, even though the old text gives no divorce.

Leading case laws

• Collector of Madura v. Moottoo Ramalinga Sathupathy

  Facts. A widow in the Ramnad zamindari adopted a son without her late husband's express authority, but with the assent of his kinsmen. The Collector claimed the estate by escheat (the State takes ownerless property).

  Principle. The Privy Council held that under the Hindu system of law, clear proof of usage outweighs the written text of the law.

  Why it matters. It is the most quoted authority on the power of custom in Hindu law.

How to write this answer in the exam

Key points to remember

• Ancient sources: Shruti, Smriti, commentaries and digests, custom.
• Modern sources: legislation, judicial precedent, justice, equity and good conscience.
• Section 3(a): custom must be ancient, certain, reasonable and not against public policy.
• Section 4: an Act overrides older text and custom on matters it covers.
• Proved custom outweighs the written text (Ramnad case, 1868).
• Article 141: Supreme Court decisions bind all courts.

Quick self-test

Related topics

• Scope and application of Hindu Law
• Schools of Hindu Law
• Ceremonies and Registration