Sources of Hindu Law can be divided into two parts- Ancient and Modern
1. Ancient Sources
Before the codification of Hindu Law, the ancient literature was the only source of the law. These sources can be divided into Four categories-
Shruti means ” what is heard”. It is believed that the rishis and munis had reached the height of spirituality where they were revealed the knowledge of the Vedas.
Thus, Shruti’s include the four vedas- Rig, Yajur, Sam and Athrava along with their brahamanas. The brahamanas are like appendices to the Vedas. Vedas primarily contain theories about sacrifices, rituals and customs. Some people believe that Vedas contain no specific laws, while some believe that the laws have to be inferred from the complete text of the Vedas. Vedas do refer to certain rights and duties, forms of marriage, requirement of a Son, exclusion of women from inheritance and partition, but these are not very clear cut laws.
Smriti means ” what is remembered”. With Smriti’s, a systematic study and teaching of Vedas started. Many sages from time to time, have written down the concepts given in Vedas. So, it can be said that Smriti’s are a written memoir of the knowledge of the sages. Immediately after the vedic period, a need for the regulation of the society arose. Thus, the study of Vedas and the incorporation of local cultures and customs became important. It is believed that many Smritis were composed in this period and some were reduced into writing, however, not all are known. The smritis can be divided into-
i. Early Smritis (Dharmashastras)
ii. Later Smritis (Dharmasutras)
C. Commentaries and Digest
After 200 AD, most of the work was done only on the existing material given in Smritis. The work done to explain a particular Smriti is called a Commentary. Commentaries were composed in the period immediately after 200 AD.
Digests were mainly written after that and incorporated and explained material from all the Smritis. Some of the famous commentaries were Manubhasya, Manutika amd Mitakshara. The most important digest is Jimutvahan’s Dayabhag that is applicable in the Bengal and Orissa area.
Mitakshara lirerally means “New World” and is important source of law in all of India. It is also considered important in Bengal and Orissa, it relents only when it differs from Dayabhag. It is a very exhaustive treaties of law and incorporates and irons out contradictions existing in Smrirtis.
Most of the Hindu Law is based on Customs and Practices followed by the people all across the country. Even Smritis have given importance to customs. They have held Customs as transcendent law and have advised Kings to give decision based on Customs after due religious consideration. Customs are of four types-
i. Local Customs
These are customs that are followed in a given geographical area.
ii. Family Customs
These are the customs that are followed by a family for a long time.
iii. Caste and Community Customs
These are the customs that are followed by a particular caste or community.
iv. Guild Customs
These are the customs that are followed by traders.
2. Modern Sources
Hindu law has been greatly influenced by the British rule. While it might seem that the British brought with them the modern concepts of Equity and Justice, these concepts existed even in Dharmashastras albeit in a different form.
The following are the modern sources of Hindu law:
A. Equity, Justice and Good Conscience
Equity means fairness in dealing. Modern judicial systems greatly rely on being impartial. True justice can only be delivered through equity and good conscience. In a situation where no rule is given, a sense of ‘reasonableness’ must prevail.
The doctrine of Stare Decisis started in India from the British rule. All cases are now recorded and new cases are decided based on existing case laws. Today the judgement of the Supreme Court is binding on all courts across India and the judgement of the High Court is binding on all the courts in that state.
In modern society, this is the only way to bring new laws. The Parliament, in accordance with the needs of society, constitute new laws.
For example, a new way of performing Hindu marriages in Tamil Nadu that got rid of the rituals and priests was rejected by the Supreme Court on the basis that new customs cannot be invented. However, Tamil Nadu later passed an Act that recognized such marriages.