INCOME TAX NOTES

Chapter 1 Sources of Hindu Law




Introduction

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: 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 such as Shruti, Smriti, Digest and Commentaries, Custom and Usages.
  2.  Modern Sources: Following are the modern sources of Hindu Law such as Equity, justice and good conscience, Precedent, Legislation.

All the above sources can be enumerated as:-

  • 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.  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.”
  • 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 : a. Dharam Surtra:- Dharam sutra are famous of Gautam, Buddhyan, Apastamb, Harit, Vishnu and Vasith. b. 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.
  • 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. In Atmarao v. Bajirao -1935: It was held that Digest writers and commenter’s has given the statements of Smritis  which can fulfill 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.
  • 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.”
In Collector of Madurai v. Mottaramlingam –1868: Privy Council held that in Hindu Law the clear proof of customs shall be more relevant then the basic epics of law.” Similarly in Harparsad v. Shiv Daya -1816: It was said that, “the custom is family or particular class or area owing to 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.
  • Hindu Widow Remarriage Act 1856.
  • Prevention of Child Widow Act. 1929.
  • Hindu Women’s right to Property Act. 1930.
  • Hindu Women’s right to Separate Residence and Maintenance Act 1946.
  • Hindu Succession Act 1956
  • Hindu Marriage Act. 1955
  • Hindu Adoption & Maintenance Act. 1956
  • Hindu Minority and Guardianship Act 1956