Hindu civilization is considered as one of the ancient civilization. Tracing the original source of Hindu law is difficult since it means going back to the point of time in the past when written material was unavailable and most of the communication was oral. Earlier the law, religion and morality were referred to as Dharma. The Shrutis mainly vedas, the smritis and the sadachara are considered as the three sources of Dharma and the Hindu law. Vedas describe societies as an advanced society with well-established norms and customs. Vedas signify the privileges, duties and obligations of a man. Hindu civilization is an ancient civilization since there are not many evidences, smritis play an important role as a source of Hindu law. Presently, the ancient sources of Hindu law are:
- Commentaries and digests
The word shru means to hear and the term refers to the four Vedas. Vedas originated by the opinion of individual sages and imparted by oral tradition to the families and disciples. Vedas comprises of two parts – Samhita and Brahma. Samhita is a collection of hymns and mantras praising God. Brahma is the theological explanation of Samhita. The Brahmanas are ritualistic treaties that enjoin sacrifices and explain their meanings. The Vedas contain no statement of law but their statements of facts find an occasional reference in the smritis and commentaries and as conclusive evidence of local usage such as the forms of marriage, of the necessity of having a son, exclusion of females from inheritance.
The tradition of the patriarchal family of the Vedic age must have formed the basis of the family law. The aphorisms were of two types: the one was based on Vedas and the other one was based on tradition and customs. These were further divided into domestic laws and laws relating to law and government. The law relating to law and government was called the Dharmasutras. Spiritual interests held more importance for a man then the temporal interest that’s why the study of dharmasutra was neglected and the spiritual brotherhood engaged themselves in the cultivation of a ceremonial branch of law.
The second source of Hindu law is a collection of manuals collectively known as smritis authored by ‘rishis’ or sages, the philosophers, social thinkers and teachers. Smritis have the entire code of conduct of life that was proposed by sages in the form of dharma covering all the aspects of life behavior relation between husband and wife, father and son and other members of the family towards each other, give endogamy punishment for sexual improprieties, rituals of birth, death and marriage, worship and sacrifice philosophy of karma and rebirth social behavior between men and women of different caste, duties of individual in their various stages of life, rule of governance, the principle of punishment, warfare for kings and officials civil or financial matters like rules of contract property devolution mortgage and interest rate. The most important smritis as a source of Hindu law is manusmriti, yajnavalkya smriti, and narad smriti.
It is the most ancient smritis of all the metrical smriti which reveals the promulgation of work in different ages and also that Manu was the oldest member of triad. Manu is the first expositor of law. This law existed before writing was invented and hence human memory was its sole repository. Manusmriti was compiled at a later date and was not in Vedic language. The code of Manu is divided into 12 chapters. The eighth chapter states the rules on 18 titles of law including both civil and criminal law. The code also comprises the laws of inheritance, property, contract, partnership, master and servant. The code treats women and Shudras harshly.
Yajnavalkya flourished in the period between Buddha and Vikramaditya. His work refers to Buddhist habits and doctrines. Yajnavalkya smriti was compiled in the first century after Christ and is way more concise and systematically arranged and more liberal as compared to Manusmriti in case of women’s right to hold an inherited property and the status of Shudras. This is smriti separated legal matters from metaphysical theories and domestic and civil duties of administration of justice. There were several common trees written on this is smriti and the most followed of them was Mitakshara, which later became the starting point of Hindu law for the property.
iii. Narada Smriti
Narad Smriti was compiled around 400-500 AD. Narad is considered more broad-minded than both Manu and Yajnavalkya because of office work on widows remarriage, woman’s power to hold an inherited property and father’s absolute right to give his separate property to his sons. The smriti also deals with the law of partnership, gift, inheritance, ownership of property and its hypothecation. A distinctive feature of this is smriti is that it laid down the rules of pleadings evidence of witnesses and procedure.
Gradual development of society gives rise to complex situations and thus necessitated the need for codified laws. Vedas didn’t contain positive laws but hymns only. The need for uniform and clear laws resulted in the writing of commentaries on the sacred text or smritis.
Mitakshara is a commentary on Yajnavalkya smriti by Vijnaneshwara. Mitakshara literally means a brief compendium. The work is a digest and compilation of smriti law, injunction and precepts. Mitakshara law consists of five schools the Mithila, the Benaras, the Dravida, Maharashtra and the Bengal school. Mitakshara law is followed all over the country except Bengal and Assam where Dayabhaga law is followed. The property laws in Hinduism are governed by Mitakshara law and legislations are also based on the same.
Dayabhaga is written by Jimutavahana in twelfth century. Dayabhaga is not a commentary but a digest of all codes. Dayabhaga law is followed in Bengal and Assam. Dayabhaga is based on the principle of religious efficacy or spiritual benefits.
Customs are described as the parent of all laws in society as the origin of all laws can be traced in the roots of customs. Customs are the primary source of law since they’re well embedded in society. Customs was accepted as an embodiment of principles and rules prescribed by sacred traditions. Customs of countries, castes and families which are not opposed to sacred records have the authority to become law thus customs become binding on society. In order to become a law a custom must be ancient, reasonable, certain, uniform, obligatory, ongoing without interruption, should not be immoral, or opposed to public policy.
This article is written by Naveeta, student of BA LLB (Hons.), at Vivekananda institute of professional studies.
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