HINDU LAW - SOURCES & SCHOOL

HINDU LAW - SOURCES & SCHOOL

Hindu law is a complex and ancient system of law that has evolved over thousands of years. It is based on various sources and schools of thought that reflect the diversity of Hindu culture and traditions. Here is a brief overview of the main schools and sources of Hindu law:

Sources of Hindu law

The sources of Hindu law can be classified into two categories: ancient and modern.

Ancient sources: These are the original and primary sources of Hindu law that derive from the sacred scriptures and customs of the Hindus. They include:

Shruti: These are the divine revelations that are heard by the sages and recorded in the Vedas and Upanishads. They are considered the most authoritative and infallible source of Hindu law.

Smriti: These are the human compositions that are remembered and written by the sages based on the Shruti. They include the Dharma Sutras and Dharma Shastras, which are the codes of law and ethics for the Hindus. Some of the prominent Smriti writers are Manu, Yajnavalkya, Narada, Parashara, etc.

Digests and Commentaries: These are the interpretations and explanations of the Smritis by various scholars and jurists. They help to clarify and apply the Smritis to different situations and times. Some of the important commentaries are Mitakshara, Dayabhaga, Viramitrodaya, etc.

Custom: These are the practices and traditions that have been followed by the Hindus for a long time and have acquired legal validity and recognition. They are a source of Hindu law only if they are not opposed to the Shruti, Smriti, or reason.

Modern sources: These are the secondary and supplementary sources of Hindu law that have emerged in response to the changing needs and circumstances of the Hindus. They include:

Justice, Equity, and Good Conscience: These are the principles of natural justice and fairness that are applied by the courts when there is no clear rule or precedent in the Hindu law. They are based on the concept of Dharma, which is the moral duty of every Hindu.

Legislation: These are the laws enacted by the Parliament or the State Legislatures to reform, modify, or codify the Hindu law. They have the force of law and override any conflicting ancient source. Some of the important legislations are the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Adoption and Maintenance Act, 1956, etc.

Judicial Decisions: These are the rulings and judgments of the courts that interpret and apply the Hindu law to various cases and disputes. They create precedents and doctrines that guide the future decisions of the courts. They also help to harmonize and reconcile the different schools and sources of Hindu law.

Schools of Hindu law

The schools of Hindu law are the different branches or sub-systems of Hindu law that have developed over time based on the geographical, historical, and doctrinal factors. They are mainly based on the commentaries and digests of the Smritis. The two major schools of Hindu law are:

Mitakshara: This is the most prevalent and influential school of Hindu law that covers most parts of India except Bengal and Assam. It is based on the commentary of Vijnaneswara on the Yajnavalkya Smriti, called the Mitakshara. It is further divided into four sub-schools: Benaras, Mithila, Maharashtra, and Dravida. The main features of this school are:

It recognizes the joint family system and the coparcenary property, which is the ancestral property shared by the male members of the family.

It follows the principle of survivorship, which means that on the death of a coparcener, his share devolves to the surviving coparceners by operation of law.

It gives primacy to the birthright of the sons over the widow’s right in the inheritance of the father’s property.

It adopts a strict and uniform scheme of succession based on the proximity of relationship and the spiritual benefit to the deceased.

Dayabhaga: This is the dominant school of Hindu law that prevails in Bengal and Assam. It is based on the digest of Jimutvahana on the various Smritis, called the Dayabhaga. The main features of this school are:

It does not recognize the joint family system and the coparcenary property, but only the individual and separate property of the family members.

It follows the principle of partition, which means that on the death of a person, his property is divided among his heirs according to his will or the law.

It gives equal rights to the widow and the sons in the inheritance of the father’s property.

It adopts a flexible and varied scheme of succession based on the religious merit and the legal capacity of the heirs.