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1. Introduction and Sources of Hindu Law Dr. Gouri Naik

2. Introduction to Hindu Law Once the Constitution recognized personal laws u/art 25 the rights and obligations of Hindu are determined by Hindu law. It is a traditional law also called religious law. It is a positive law based on most ancient pedigree of known system of jurisprudence. I t is developed on various sources which can be classified as ancient and modern sources.

3. SOURCES OF Hindu law Ancient sources Shruti – The term ‘ Shru ’ means to hear and refer to four Vedas. The vedas contained Hymens ( Praising the god) and Mantras which are based upon the thoughts of the divine light T he vedas reflected the social conditions of Hindus as an advanced civilised society.

4. Ancient sources Smriti - The second source of Hindu Law after the Vedas. Authored by great Rishis or sages known as smiritikars . ( Yajnavalkya - one of the prominent smritikar ) Smritis are of two kinds – dharmshastras and dharmsutras . they contained various rules which can be divide in to three parts – Achar Vyavhar Substantive laws Eg . Manu smriti , Yagnyavalkya Smriti .

5. Ancient sources Digest and Commentaries Vedas were not accessible to all and hence commentaries became one of the major source. With the gradual development of society led to many complex situations and multifaceted problems. T hus codification of law and rules became necessary. The commentaries and digest proved to be of great help. Many commentaries based on Manu smriti were prevalant . One of the practical examples is Mitakshara , Dayabhaga .

6. Ancient Sources Customs One of the most significant sources of hindu law they are said to be parent of all the laws in a society. The lawmakers often relied on customs and usages. any law which contradicted customs was rendered unsuccessful.

7. Customs… In early development of H indu law customs were accepted as an embodiment of principles and rules prescribed by sacred traditions. Many customs have found place in contemporary laws. However a custom needs to be tested on the tests of validity.

8. Essentials of a valid custom Custom must be ancient. It must be reasonable. It must be certain. It must be Uniform. Obligatory and observed continuously without interruption and, It should not be immoral or opposed to public policy or written rule of law or a statute unless and until it is expressly saved by the statute. And it should be construed strictly.

9. Example of Customs Marriage adoption/ Dattak vidhana Triple Talaq Widowhood Child Marriage Sati Practices Female Genital mutilation.

10. MODERN SOURCES JUSTICE, EQUITY & GOOD CONSCIENCE LEGISLATIONS PRECEDENTS Justice , Equity & Good Conscience They are natural law principles. Also called as secondary source of law. Constitution embodies them under the preamble

11. Equity means fairness in dealings. True justice can only be delivered through equity and good conscience. In absence of any written or specific law these principles are to be applied in any legal dispute.. The Indian courts and legal system has broadly incorporated these principles. These principles have made their way in our legal system form 18 th century and are considered as modern source of law. the courts did applied them under the express charters of British Parliament

12. The supreme court has also applied this in the case of Gurunath v. Kamlabai (1951) LEGISLATIONS Legislations are playing profound role in the development as source of law. Legislation is a concrete, easily accessible, ascertainable and authoritative source of law. During British period as different parts of India were subject to diverse rules and practices, the British Government was initially hesitant to legislate on the personal matters of Indians.

13. But gradually they stared making legislations with a cautious approach. Few examples are ‘ The Caste Disabilities Removal Act, 1850’ The Hindu Widows’ Remarriage Act, 1856 The Indian Succession Act, 1865 Special Marriage Act , 1872.etc. With the need of clarity and codification Hindu law became necessary and to a large extent has now been codified through specific legislations.

14. Precedents Also Known as judicial precedents. After the establishment of British rule, the hierarchy of Courts was established . The doctrine of precedent based on the principle of treating like cases alike was established Even today, the decisions of Privy Council are binding on all the lower Courts in India except where they have been modified or altered by the Supreme Court , whose decisions are binding on all the Courts except for itself .(Art. 141)

15. Q & A