Hindu law applies on Hindu. But who is Hindu? Generally, Hindu are those people who profess Hindu religion either by birth from Hindu parents or they profess Hindu religion by conversion to Hindu faith. Now, we need to know the sources of Hindu Law. How Hindu law came into existence.
The word ‘Sruti’ is derived from the word “sru” which means “to hear”. So, Sruti is the word of God which was heard. The words of God are found in four Vedas (namely Rigveda, Yajurveda, Samaveda and Atharvaveda), six Vedangas and eight Upanishads.
Gita is always considered as a source of Hindu law because Lord Krishna gave knowledge to Arjuna at the battle of Kurukshetra.
The literal meaning of the word “smriti” is “what is remembered” So, what we remember after hearing the words of God is Smritis. Rishi and sages of antiquity are acting as a source as they are telling what is the word of God. So, Dharma Sutras and Dharma are Smritis.
Further, Smritis are of two kinds –
Prose – The principal authors of Prose style verse are Vasishtha, Gautam and others.
Poetry – The principal authors of Poetry Style verse are Vishnu, Narada, Manu and others.
Commentaries and Digests ( Nibandhas)
Every person has their own interpretation. So, when commentators interpret the words of Smriti to create balance and harmony with current usage then it becomes Nibandhas or Commentaries and Digests.
The commentators usually give rise to schools of Hindu Law and Generally, there are two schools Mitakshara School and Dayabhaga School.
Puranas are also known as Itihas which illustrates the law by instance of its application.
In a strict sense, Judicial Decisions are not considered as the true source of Law. They are precedent for future cases. There are two theory in Judicial Decision –
Judges made law theory which says that Judges are makers of Law.
Declaratory Theory which says that Judges don’t make the law but they declare the law.
In 1829, Sati was abolished by the instance of Raja Ram Mohan Roy and by the law. Initially, widow remarriage was not permitted in Hindu Law but in 1856, Hindu Widow’s Remarriage Act declared remarriage of widows as constitutional.
In the same way, Legislation passed acts which modified the practice and belief. For instance – Polygamy was valid however, IPC prohibited Polygamy in 1860.
In 1949, Hindu Marriage Act legalised inter religious marriage. Earlier, the marriage was in the same dharam (religion) and Jati (Caste) void.
Justice, Equity and Good Conscience
Women were not getting right on the property of Parents which was principle of Justice, Equity and Good Conscience but now they are also getting their right which became the source of Hindu Law
Custom and Usage
Custom and Usage are the practices followed by family, society, Locals from a longer duration of time. Any practice is considered as custom and usage if they are certain, reasonable and ancient. Many times, custom and usage prevails over general law.