Syed Owais Khadri wrote this article. The article provides a comprehensive study of the sources of Hindu Law. The article begins with a brief background and origin of Hindu law and discusses the sources. It discusses the various sources of Hindu law from ancient and modern sources. Further, it discusses some of the important judicial decisions rendered by the Indian judiciary recognising the multiple sources of Hindu law. It also discusses certain vital decisions that form a source of Hindu Law.

This article has been published by Anshi Mudgal.

Introduction

India is a country of diverse cultures and practices. It includes diversity in language, religion, caste, region, etc. However, the diversity in religion holds greater importance and role than any other diversity in legal matters concerning private or personal issues of individuals. Since the people in India follow different religions, their customs and practices differ in various matters, including marriage, divorce, etc. Accordingly, people of other faiths want to be governed as per their religious and customary practices, which has led to the enactment of different personal laws.

Hindu law governs individuals who follow the Hindu religion or faith, guiding their personal and social practices. It is a blend of religious principles and age-old customs collectively referred to as Hindu law. This legal system is not derived from a single source or book but instead has multiple origins, including ancient texts like the Upanishads and Srutis, as well as commentaries, customary practices, and even modern interpretations. These varied sources together form the foundation of Hindu law.

This article breaks down the sources of Hindu law, looking at where it comes from and how it has evolved. It explains the meaning and background of Hindu law, the ancient texts and modern influences that shaped it, important court decisions, and how it changed after India became independent.

Meaning of Hindu Law

Before we explore the background, origins, and sources of Hindu law, it’s essential to understand what it means. Knowing its definition will give us a clear idea of its foundation and what makes up this legal framework. Hindu jurists, legal experts, and courts have defined the term in different ways over time. Let us examine the meaning and definition of ‘Hindu’.

Hindu law refers to a part or element of the Hindu faith or practices with legal significance. It is generally referred to by the Hindu law jurists as the enforceable part of the Dharma. Dharma itself is Hindu law in a broader sense. Medhatithi, in his work on Manusmriti, states that “Law as understood by the Hindus is a branch of Dharma, an expression which signifies duty.” It is a body of rules, regulations, and principles recognised and employed by the sovereign to govern the subjects. It is a law that can be altered by the sovereign but is not usually altered.

Dharma refers to the rules, regulations, or simply the law that governs the entire mankind and which everyone is bound to follow. It is mainly based on morality and ethical practices. It includes all kinds of laws, religious, moral, legal, physical, or scientific rules and regulations. In his book Hindu Law, Paras Diwan defines ‘Dharma’ as “What is followed by those, learned in the Vedas and approved by the conscience of the virtuous who are exempt from hatred and inordinate affections.”

Manu describes the Vedas, the Smritis, their approved usage, and whatever appeals to an individual’s good conscience as the four distinct pieces of evidence of Dharma. Similarly, Yajnavalkya opines that the Srutis, Smritis, what assents to an individual’s soul or good conscience, etc., lay the foundation of Dharma/Law.

Mayne defines Hindu Law as the Law of Smritis, which was developed in the Sanskrit commentaries digests, is modified and accompanied by customs and is administered by the courts.

The meaning of the term ‘Hindu law, ’ according to the courts, was first given by the Madras High Court in the case of Mookka Kone Alias Vannia Kone And Ors. vs. Ammakutti Alias Vannichi Ammal And Anr. (1927). The Hon’ble Madras High Court in this case had explained that Hindu Law is neither a form of customary law of any country such as the common law of England nor is it a statute enacted by a supreme authority like the legislature or a kind which is imposed upon the people. The court defined Hindu law as “a set of rules contained in several Sanskrit books which the Sanskritists regard as the books of authority on the law governing the Hindus.”

Moreover, it is essential to note that Hindu law, unlike other laws, is not lex loci, which means it is not a law limited to a particular territory or a locality but is a personal law which implies that it applies to every individual following or practising Hinduism irrespective of the territory or locality one is in. Nevertheless, there can be legislation or laws that may be enacted in different regions or localities. Still, the source or fundamentals of such local or territorial laws passed to govern Hindus must be based on Hindu law.

As the meaning of the term is now clear, it is necessary to look into the background and origin of Hindu law to get a brief idea about what could be regarded as its sources. The background and origin of Hindu law have been discussed in brief as follows.

Background and origin

Hindu law is regarded as the most ancient legal system known. Since the Vedic period is believed to have been between 4000 and 1000 B.C., we can consider Hindu law to be around 6000 years old. 

The birth of Hindu law has two different perspectives. One perspective is held by Hindu jurists or Hindus in general, and the other by Western jurists. While Hindu jurists or Hindus believe that Hindu law is of divine origin, Western jurists believe that the origin of Hindu law is from long-standing customs, practices, and usages.

Hindus believe that Hindu law comes from the Vedas, which they consider divine revelations from God. This gives the law a sacred and divine origin. Based on this belief, even rulers or kings are expected to follow the law, just like ordinary people, showing that nobody is above the sacred law.

Western jurists, however, disagree with the idea that Hindu law has a divine origin. They argue that Hindu law comes from long-standing customs, practices, and usages that existed well before the emergence of the Hindu faith. They call this period or source as Brahminism.

John Dawson Mayne, a British lawyer, had a different and more balanced view about the origin of Hindu law. He didn’t completely agree with the idea that Hindu law is entirely divine or solely based on customs and traditions. Instead, Mayne believed that Smritis, which are essential texts in Hindu law, were influenced by both. 

Mayne explained that these texts were half taken from the customs, traditions, and practices of ancient times and half from the rules and regulations created by Hindu jurists and rulers of that period. Mayne viewed Hindu law as a combination of traditional practices and the legal authority established by past rulers and scholars.

With a clear understanding of Hindu law’s meaning, background, and origin, it is now easier to discuss and understand the importance and role of different sources of Hindu law in its development.

Sources of Hindu Law

The sources of Hindu law are generally divided into two categories: the ancient sources and the modern sources, which together contain the seven sources as the main sources of Hindu law. The sources of Hindu law are represented in a graphical format below.

Hindu law has grown and evolved significantly over its 6,000-year history, passing through many different phases. There have been times when it has made remarkable progress, but it has also faced challenges and setbacks along the way. However, it has still remained an important part of the legal and social framework. 

It’s important to remember that laws aren’t fixed or unchanging. They grow, change, and evolve as society changes. For any legal system to exist for a long time, it needs to change with the times and address the growing needs of the people. This ability to adapt has helped Hindu law continue to exist and develop over such a long period. 

Hindu law’s definition, meaning, and origin clearly point out what could be considered as the possible sources of Dharma/Hindu law. The Hindu jurists, or Hindus in general, mainly regard the Vedas, Smritis, customs, practices, and moral principles as the sources of Hindu law. In contrast, Western jurists only stick to customs and practices as sources.

According to Manu, Hindu law or Dharma is derived from four main sources: the Vedas, the Smritis, customs and usages approved by society (Sadachara), and what is acceptable to an individual’s conscience. Similarly, Yajnavalkya, a sage like Manu, also suggests the same sources. However, he refers to the Vedas with a different name. He refers to the Vedas as Srutis.

On a slightly different note, Mayne regards the Smritis as a collection of approved customs, usages, practices, and rules made by Hindu jurists. He, therefore suggests the Smritis and the commentaries as the authoritative sources of Hindu law. 

Therefore, according to the meaning, and origin of Hindu law and the opinions of the jurists, it can be inferred that the sources of Hindu law can be briefly noted to include the Vedas, the Srutis, the Smritis, the approved customs, practices and usages, the moral principles or what is acceptable to an individual’s conscience and the commentaries. However, the discussion concerning the sources of Hindu law has evolved to include one or two other sources in addition to those mentioned above. 

The study of sources of Hindu law is the study of the law’s development through various phases, with modifications and alterations to the law in the said course. The seven sources, which are divided into two categories, ancient sources and modern sources, have been listed as follows. The ancient sources were also represented earlier in a graphical format.

Ancient sources

1. Srutis,
2. Smritis,
3. Commentaries and Digests,
4. Customs,

Modern Sources

1. Judicial decisions,
2. Legislations, and
3. Justice, equity, and good conscience.

As we’ve got a brief idea as to what are the main sources of Hindu law, we can proceed to understand each source in detail. The sources mentioned above have been discussed in detail as follows.

Ancient sources

The ancient sources of Hindu law include the Srutis, Smritis, Customs, Digests, and commentaries. The ancient sources are of paramount importance, the role of which cannot be ignored in the development and evolution of Hindu law. All the modern sources of Hindu law are based on these ancient sources, along with specific changes that were felt necessary from time to time with the societal changes. Hence, the ancient sources remain Hindu law’s fundamental and foundational works. 

The ancient sources include, or are primarily in the form of, old sacred written texts, apart from the customs. These sources are mainly available in the Vedas, Upanishads, etc. These written texts are a collection of prayers, rituals, practices, usages, etc., which are noted or collected in the form of writings by sages. The written texts usually date back to ancient times of around 1500 B.C, while the customs considered ancient and are practised even today. The digest and commentaries are the works by jurists on ancient practices and sacred written texts. 

Let us look into the ancient sources one by one.

Sruti

Hindu law follows the divine theory of law and is hence considered divine law revealed by God. The theory suggests that some Hindu sages, who had attained great heights of spirituality, communicated directly with God. During this communication, the sacred or divine law is believed to have been revealed to them by God himself. These revelations made by God are said to have been compiled in texts that came to be known as Srutis (Shrutis) or Vedas.

‘Sruti’ comes from the root word ‘Sru,’ meaning ‘to hear.’ So, Srutis refers to what has been heard. When we talk about Srutis as a source of Hindu law, the main focus is on the Vedas, but we should remember that the Vedangas and Upanishads are also part of Srutis. 

Srutis are thought to be divine revelations, basically the words of God or deities that were told down to sages. Because of this sacred connection, Srutis are considered the most important and authoritative source of Hindu law. Among them, the Vedas hold the highest place and are considered the foundation of Hindu law. That’s why Srutis are often called the cornerstone of Hindu law, providing its core principles and guidance.

However, the legal significance of Sruti is debatable due to the lack of legal statements or provisions in them. The Srutis mainly consist of the four Vedas and the Upanishads or Vedantas, both of which contain information relating to religious rites or methods of attaining Moksha (Salvation) or Gyana/Jnana (Knowledge). Vedas and Vedantas are briefly discussed below.

Vedas

The term ‘Veda’ is derived from the Sanskrit word ‘Vid,’ which refers to knowledge or simply means ‘to know’. Vedas are a collection of poems, Hymns, prayers, etc. 

Let us look into a few dictionary meanings of the term ‘Veda’

According to the Merriam-Webster Dictionary, Veda is “any of four canonical collections of hymns, prayers, and liturgical formulas that comprise the earliest Hindu sacred writings.”

The Collins Dictionary defines a Veda as “any or all of the most ancient sacred writings of Hinduism, esp the Rig-Veda, Yajur-Veda, Sama-Veda, and Atharva-Veda.”

Similarly, the Cambridge Dictionary defines Veda as “one or all of the holy books of writings of Hinduism.”

The Vedas are seen as the leading traditional source of Hindu law. Vedas were all composed during the Vedic period. These ancient texts provide a glimpse into the lives of our early ancestors on the Indian subcontinent. They reflect people’s mindset, beliefs, customs, thought processes, and overall way of life during that period, giving us valuable information into how society worked in those times.

However, the Vedas don’t give rules of law in a structured or organized way. The rules and principles associated with the Vedas are usually the conclusions or interpretations taken from the texts. In his work, History of Vedas, Kane points out that the Vedas don’t directly provide formal rules on Dharma. Instead, they contain distributed or scattered references to various aspects of life and Dharma, leaving much of the structure to be inferred. 

The four main Vedas of Hinduism are the Rig Veda, Yajur Veda, Sam Veda, and Atharva Veda. All four Vedas are briefly examined below.

Rig Veda

The Rig Veda is the oldest and biggest of all the Vedas and is considered the earliest sacred text in Hinduism. It mainly contains hymns, praises, and prayers to the gods, along with laws and rules about sacrifices, all written in the form of songs. It’s also important to remember that the Rig Veda is not just one single text but a collection of several different works that were brought together over a period of time.

The Rig Veda is divided into 10 parts, called “Mandalas.” Each Mandala contains a group of mantras known as “Suktas.” In total, there are about 1,028 Suktas. These Suktas further contain 10,552 verses or mantras. These mantras are a vital part of the Rig Veda and are essential to its teachings and rituals.

Yajur Veda

The Yajurveda is all about rituals, ceremonies, and mantras. Its name comes from the Sanskrit word Yaj, which means sacrifice or Yajna. As the name suggests, it gives step-by-step instructions for performing these rituals and conducting Yajnas. One feature of the Yajurveda is that about 663 verses are actually borrowed from the Rig Veda.

Interpreting the procedures laid down in these Vedas can sometimes be challenging. Therefore, to overcome this hurdle, a comprehensive and elaborate system comprising certain principles of interpretation has been developed to ease the understanding of procedures relating to the performance of yajnas. These principles are known as the ‘Mimansa principles. ’ 

The Yajur Veda depicts the social and religious life of the people during the Vedic period. It also provides some geographical data. It is further divided into two categories known as the Shukla Yajurveda and Krishna Yajurveda.

Sama Veda 

Sama Veda is the shortest of all Vedas. It contains musical prayers, mantras, etc., which are chanted during sacrifices and rituals. Hence, it is known as the Veda, containing the science of music. Sama Veda is believed to have been revealed to Rishi (sage) Jaimini, who is said to be the father of this Veda. Only 75 verses of Sama Veda are new, while the rest have been drawn from Rig Veda.

Atharva Veda

The Atharva Veda contains texts dealing with black magic, spells, magic charms, etc. It is believed to have been composed by Rishi Atharva. It comprises around 20 chapters containing around 730 hymns and 5987 mantras. The origin of Ayurveda is considered to be the Atharva Veda, making it the oldest work available on Indian medicine.

After brief information on the four primary Vedas, we shall move on to the next part of the Vedas, or the extensions of the Vedas, which are known as the Vedangas.

Vedangas

Vedangas are additions to or extensions of Vedas. They were formulated in the post-Vedic period. There are six Vedangas, which are as follows.

1. The Shiksha or Orthography and Orthoepy. It deals with spelling and pronunciation.
2. The Kalpa or the treaties dealing with rituals.
3. The Vyakaran or Grammar.
4. The Chhandas or prosody. It refers to the accents or speeches in poetry.
5. The Jyotish or Astronomy.
6. The Nirukta or Lexicon. It refers to a dictionary or glossary.

Let us now look into the last category of Sruti or the end of Vedasi.e., Upanishads or Vedantas. 

Upanishads 

The Upanishads are also known as Vedantas. The name comes from two Sanskrit words: Veda, which means knowledge, and Anth, which means end. The name reflects their position as the concluding sections of the Vedas. Chronologically, they were written after the main parts of the Vedas, which is why they’re considered the “end” of the Vedas. 

The Upanishads contain the highest values or principles of Hindu philosophy and religion. German philosopher Arthur Schopenhauer opined that studying the Upanishads is the most beneficial study in the world.

Sruti, as a custom, has paramount significance since it is believed to be God’s direct revelation and, hence, lays down the foundational principles of Hinduism. The other sources, particularly the Vedas and the Upanishads, are either inspired by or based on Sruti.

Smriti

The time when Smritis were composed is generally called the golden age of Hindu law. Smriti comes from a Sanskrit word that means “what was remembered.” Unlike the Srutis, which are believed to have a divine origin, Smritis are considered to be of human origin. They are thought to be the recollections or interpretations of laws and practices remembered and recorded by priests or sages, known as Rishis. 

Smritis are an essential source of Hindu law, after Srutis, because they focus on life’s legal and societal aspects. They record customs, practices, and traditions that are considered highly authoritative in shaping Hindu law. Smritis are broad and open to interpretation, making them flexible but also tricky to understand and apply.

Mulla, in his book on Hindu law, states that the ancient law laid down in the Smritis was fundamentally traditional. The demand was that the long-standing institutions and timeless customs be conserved unchanged. He further says that the traditional law was itself based on time-honoured customs. 

Smritis can be difficult to interpret because their meaning isn’t always straightforward. You must understand how the words and ideas are connected and not just take them literally. Another reason they can be difficult is that they cover more than just laws. They also deal with topics like religion and morality. That’s why judges have often said it’s essential to be very careful when interpreting Smritis, especially in cases where they’re being used as a source of law.

As we’ve got a basic introduction to Smritis, let us move on to look into the kinds of Smritis and the most popular and significant ones that are considered. 

Kinds of Smritis

Smritis are of two kinds. The division is based on the chronological order of the period they were composed or formulated. The two types of Smritis are primary and secondary; as the name suggests, secondary is formulated later. The two kinds are known as ‘Dharmasutras’ and ‘Dharmashastras’. The Dharmasutras are formulated in the prose style, whereas the Dharmashastras are composed in the poetry style. The two kinds of smritis are briefly discussed below.

Dharmasutras 

The primary Smritis written in prose form are called the Dharmasutras. These texts are considered older than the Dharmashastras because they were created earlier. While many Dharmasutras are written entirely in prose, some are a mix of prose and poetic verses. According to Hindu Law by R.K. Agarwal, the Dharmasutras are from approximately 800 to 200 B.C., making them an important early source of Hindu law.

Dharmasutras contain texts about men’s duties in various aspects. They are nothing but compositions made by intellects based on the law laid down in the Vedas, decisions rendered by those well-versed in the law and customs of the inhabitants of the Indian subcontinent. 

The names of their authors are generally known as dharmasutras. Some of the prominent authors of Dharmasutras include Gautama, Baudhayana, Apastamba, Vasishtha, Vishnu, and Harita. 

• The Dharmasutra by Gautama is the oldest, extensively dealing with legal and religious matters.
• It also contains text relating to inheritance, partition, and stridhan. He values traditions, practices, and usages.
• The Dharmasutra by Baudhayana contains texts about marriage, adoption, inheritance, etc. He refers to various customs in his work.
• The Dharmasutra by Apasthamba is regarded as the best preserved. He recognised and considered most of the customs prevalent around that time and regarded the Vedas as the source of all kinds of knowledge.

Dharmasutras are not merely works on Hindu law jurisprudence but also describe ancient legal history and people’s social lives, making them an important source of law and history. 

Dharmashastras

The second type of Smritis, written in the form of poetry or verses, is known as Dharmashastras. These texts are more structured and systematic than the Dharmasutras. Some of the most popular writers of the Dharmashastras include Manu, Yajnavalkya, Narada, Vishnu, Devala, Vrihaspati, Katyayana, and Vyasa.

The majority of the Smritis is divided into three parts: the Acharya Adhyaya, the Vyavahara Adhyaya, and the Prayaschita Adhyaya. Acharya Adhyaya deals with laws relating to rituals, Vyayahara Adhyaya contains civil law, and Prayaschita Adhyaya comprises patacas, mahapatakas, and upapatakas, which refer to various types of sins. It also includes ideas concerning self-awareness and knowledge.

Out of all the Dharmashastras or smritis composed or authored by various prominent authors, Manusmriti and Yajnavalkyasmriti are the most popular and important ones. Both Manusmriti and Yajnavalkyasmriti are briefly discussed below. 

Manusmriti

The majority of Hindu sages and commentators have always regarded the Code of Manu or the Manusmriti as the smriti bearing principal authority. Brishaspati suggests that Manusmriti holds the fundamental position since the author wrote it in the whole sense of the Vedas. He further suggests that no other smriti is as authoritative as this one and neither contradicts it.

Manusmriti is the oldest smriti, dating its composition to 200 B.C.E. as suggested by Maxiller, and is considered a repository of law with 12 chapters and around 2700 shlokas. Although, the work as a whole deals with various subject matters, the relevant legal part of the smriti related to 18 topics of law which include Debt, pledge, sales, partnerships, wages, agreements, boundary disputes, master and servant, husband and wife relationships, partitions and inheritance, betting and gambling, assault, defamation, battery, theft, robbery, and adultery. 

Manusmriti is often criticised for the harsh opinions and views of the author towards women and other individuals from castes that are regarded as lower ones, commonly referred to as Shudras. The majority of the opinions and views he presented and the theories or doctrines he formulated are orthodox. 

A few of the popular commentaries written on Manusmritis are listed as follows.

• The earliest commentary on Manusmriti is a commentary titled ‘Manubhasya’ written by Medhathiti between 825 and 900 A.D.
• Manutika, written by Govind Raja in 1100 A.D, is another well-known commentary.
• Similarly, Kuluka Bhatta’s commentary ‘Manavokta Muktawali’, written in 1250 A.D., is the most famous commentary on Manusmriti.

Yajnavalkya-smriti

Yajnavalkya smriti is the second most fundamental smriti after Manusmriti. It is believed to have been composed around the second century A.D., roughly at the beginning of the Christian era. Professor Stenzler opined that Yajnavalkya’s work was mostly based on and inspired by Manu’s. However, Yajnavalkya’s smriti is more dynamic, progressive, structured, concise, and logical than Manusmriti. 

Yajnavalkya Smriti contains 1010 shlokas. These shlokas are divided into four categories, which are listed as follows.

• Achara
• Vichara
• Vyavahara
• Prayaschita

The first category i.e., Achara contains texts relating to marriages. The other parts of the smriti contain texts on court proceedings, sale, theft, adultery, defamation, assault,partisions, etc. The smriti contains rules and procedures in a detailed manner when compared to other smritis.

During the British period, the administration of courts and adjudication of matters relating to Hindu law were based on Yajnavalkya-smriti. 

A few of the critical commentaries written on Yajnavalkya Smriti include the following.

• Mitakshara by Vijnaneshwara in 1100 A.D. – The most widespread and the most critical commentary.
• Balakrida by Viswarupa in 900 A.D. – Earliest commentary.
• Aparaditya by Apararka in 1200 A.D. – Paramount significance in Kashmir.

Among the three commentaries mentioned above, Mitkashara is the most prominent one. In fact, the commentary Mitakshara gives Yajnavalkya-smriti great significance. The commentary discusses or explains the smriti in a simplified manner and in harmony with the prevalent practices. 

Differences and similarities between Manusmriti and Yajnavalkya Smriti

Manusmriti, believed to have been composed by Manu, and Yajnavalkya-smriti, composed by Yajnavalkya, are two different works, but the latter is inspired by and based on the former. Since one is inspired by the other, there are a few similarities between both works. However, on the other hand, there are more differences than similarities between both smritis. 

The only commonalities or similarities between both works include the common feature of their division into three parts as Achara, Vyavahara, and Prayaschita. Another commonality between both the smritis is the recognition and the importance given to customs. Manu suggests that a king must look into the customs of the locality while dealing with any dispute. Similarly, Yajnavalkya indicates that anything the people condemn must not be practised even if it is laid down in smritis.

Some of the significant differences between Manusmriti and Yajnavalkya-smriti are listed as follows.

• Manusmriti portrays the king with divine rights and authority, whereas Yajnavalkya smriti does not do so.
• Yajnavalkya Smriti imposes liberal and less severe penalties and punishments than Manusmriti.
• Yajnavalkya smriti deals with procedural law, whereas Manusmriti deals with substantive and procedural law but does not give importance to the latter.
• Yajnavalkya Smriti is considered to be more logical and concise than Manusmriti.
• Yajnavalkya Smriti adopts a less harsh and orthodox view towards women and Shudras, unlike Manusmriti. 

In addition to the two significant smritis discussed above, other smritis, such as Narada Smriti, Brihaspati Smriti, etc., are also important. Narada Smriti and Brihaspati Smriti contain texts relating to various legal subjects. 

Naradasmriti

Naradasmriti was composed around the 2nd to 4th century A.D. It empowers the king to make laws but states that such a power must be exercised by acting within the limits of and based on Vedic principles and customary practices. It further adopts a liberal view towards women and Shudras. It deals merely with civil law, i.e., Vyavahara. It is broadly based on Manusmriti and Yajnavalkya-smriti but differs on some issues. It is the most structured and exhaustive smriti on rules of law. It deals with procedural law with great clarity. One of the most popular commentaries on Naradasmriti is Narada Bhasya by Ashaya. Narada gave great importance to customs, suggesting that customs decide everything and can even override the sacred law.

Smritis, as a source of Hindu law, is also of fundamental importance next to Sruti due to the nature of the information contained in these texts. Smritis contains texts that largely relate to the legal aspects of society; in fact, it contains more information about legal aspects than the Srutis. Therefore, Smritis serves as a great source for the development of Hindu law.

Customs

Customs are regarded as the root or architect of any personal law across the globe. India is no different, especially when the Indian history is rich in diverse customs, usages and practices. Customs are one of the most essential sources of any law, including Hindu law. Custom is presumed to be based on unrecorded or undocumented revelations whose ancient writers insist on observance. It has the effect of modifying or diverting from the conventional or general personal law but does not overrule the statutory law. 

Meaning and definition of custom

In his book Hindu Law,” Former High Court judge of Allahabad Justice R.K. Agarwal suggested that custom refers to a practice or norm that takes the form of law due to its prolonged practice or use in a particular family, class, community, or district. 

Merriam-Webster defines custom as “a usage or a practice common to many or to a particular place or class or habitual with an individual.” or “a longstanding practice considered as unwritten law.”

The Collins Dictionary defines custom as “an activity, a way of behaving, or an event which is usual or traditional in a particular society or in particular circumstances.”

Similarly, the Cambridge Dictionary defines custom as “a way of behaving or a belief that has been established for a long time.”

The Hindu Marriage Act, 1955, gives a formal definition of the term “custom.” According to Section 3(a) of the Act, the terms “custom” and “usage” refer to any rule that has been consistently and uniformly followed for a long time. Over time, these practices become so well-established that they take on the force of law among Hindus in a particular local area, tribe, family, community, or group. It’s about traditions or practices observed for so long that they are now considered legally binding within that group.

The definition of “custom” under Section 3(a) of the Hindu Marriage Act, 1955, comes with a few conditions. For a custom to be recognized, it must meet specific criteria. For example, it should be confident and reasonable and not go against public policy. Also, if a custom applies specifically to a family, it must have been consistently followed by that family and not discontinued over time. 

The terms “custom” and “usage” might seem similar, but they are slightly different. “Custom” refers to rules or practices that have been followed for a very long time, making them deeply rooted in tradition. On the other hand, “usage” refers to practices that may have started more recently, like those related to agriculture or trade. So, while both involve accepted practices, “custom” is about age-old traditions, and “usage” is about newer practices that have developed over time.

Essentials of custom

For a norm or practice to be recognized as a custom and take the form of law, it must meet specific criteria: it must be ancient, confident, reasonable, and have been followed continuously. The Hon’ble High Court of Madras highlighted this principle in the case of Deivanai Achi vs. Chidambaram (1953). The court observed that a custom must show the essential qualities of certainty, antiquity, and reasonableness for a custom to become law. 

In the case of Ratanlal alias Babulal Chunnilal Samsuka vs. Sundarabai Govardhandas Samsuka (D) through her LRs (2017), the Supreme Court of India also supported the views of the Madras High Court. The Court said that for a custom to be valid, it must be certain, have been practiced for a long time, be continuous, and be reasonable. But, the Court also made it clear that any immoral custom, goes against public policy, or breaks a law can’t be accepted as valid

As highlighted in the earlier decisions, antiquity, reasonableness, and certainty are the three key elements determining whether a practice can be recognized as a valid custom. These factors ensure that the custom is deeply rooted in tradition and is practical and consistent over time. However, the said three are not the only essentials of a custom. The essentials for a custom to be valid are as follows;

• Ancient;
• Certainty/Invariability and continuity;
• Unambiguous evidence to establish the proof;
• Reasonability;
• It must not be opposed to morality or public policy;
• Any enactment of the legislature must not expressly prohibit it.

The essentials of customs are discussed in detail below.

1. Ancient 

Antiquity is one of the essentials of a valid custom. For a custom to be valid, it must be ancient and must have been accepted by the people as a binding law.

Although ancient, this does not mean that it must have been in practice from time immemorial. However, it must have been primordial in India. In the British interpretations, the term or expression ‘time immemorial’ or any like expression legally denotes the time setting in motion from the reign of King Richard I, i.e., from the year 1189 A.D. 

To eliminate confusion concerning the period needed to recognize a valid custom, the Indian intellects, particularly the Indian lawyers, suggested a reasonable rule prescribing a limit of 100 years for the recognition of the validity of any custom. Therefore, according to the suggestion, anything beyond 100 years can be considered as ‘time immemorial’ or of a similar expression. The prescription of particularly 100 years of age is due to the idea of man’s life span as per the Srutis. According to the Srutis, man’s life span extends to one hundred years only. Hence, anything beyond one hundred years is regarded as beyond the memory of man or immemorial.

In the case of Gokal Chand vs. Parvin Kumari (1952), the Hon’ble Supreme Court observed that for any custom to be regarded as valid, it must have attained a binding nature due to its prolonged usage. The Court observed that the English rules of antiquity of time need not be rigidly applied to the Indian Constitution. The primary necessity for a custom to be proved valid is that the usage must have been practised with certainty and invariability for an exceptionally long period to show that such usage was accepted by common consent as the binding rule of a particular locality.

2. Certainty/Invariability and Continuity 

 Invariability and continuity are also one of the three most crucial essential elements of a valid custom. It is as vital as antiquity. In the instances of any custom being extensively spread across a particular locality, the continuity of such custom would be regarded as evidence because it is hard to imagine that a custom once widely accepted would suddenly extinguish or retire. 

In this regard, the Privy Council observed in the case of Raj Kishon vs. Ramjoy (1876) [(1876) 1 Cal. 186] that there was no principle or rule holding that a manner of descent of an ordinary estate may not be discontinued. It observed that merely the basis of the family usage of such a manner of descent is not sufficient to hold that such a manner cannot be discontinued. 

It observed that the family usages differ from the territorial customs, lex loci, i.e., laws of locality binding on all persons within a particular locality in which it is prevalent. The Privy Council further observed that continuity, invariability, certainty, and acceptability are the ethos of family usage. Hence, it is implicit that a custom would extinguish or retire when it is discontinued, irrespective of whether such discontinuation was due to accidental cases or intentional by the persons bound by it.

3. Unambiguous evidence 

 The evidence of a custom must be unambiguous in nature. The validity of a custom may be established either by the proof of actual instances or by the general evidence of the awareness of its existence among the general members of a family, tribe, or locality. However, the validity of such custom must be established by unambiguous and unmistakable evidence. In the case of Laxmibai (D), the Hon’ble Supreme Cour, through her LRs. & Anr vs. Bhagwanth Buva (D) through LRs. & Ors (2013) observed that a custom quoted by a party must be established by such party, and the evidence must not be unsatisfactory or conflicting. 

It further observed that a custom cannot be incorporated or advanced based on analogy or a logical process, nor can it be established based on any presumption. It observed that material customs must be established or proved properly and satisfactorily.

Nevertheless, the Hon’ble High Court of Madras in one of its decisions, Gopalayyan vs. Raghupatiayyan [(1873) 7 M.H.C.R 250] ruled that the testimony of specific experienced and competent individuals concerning the performance or practice of certain acts by a particular usage is admissible if such usage is regarded as valid and legal by them. It, however clarified that the testimony must be supported by other acts performed or practices by the said usage. R. K. Agarwal, in his book of ‘Hindu law’, points out another case, Sahadeo vs. Kisun (5 PLR 111), in which the court ruled that while dealing with a class custom, the history of the class must be taken into consideration to establish such custom.

Moreover, if any custom comes to the courts’ attention, it may be regarded as having become part of the general law, and it is not necessary for such customs to be proved in every case.

4. Reasonable 

Reasonableness is the last requirement for a custom to be valid, after antiquity and certainty. A custom must be old, transparent, and fair. If something is a practice without a solid reason, it can’t be considered a custom. And if a custom is unreasonable, it won’t be accepted as valid.

5. Non-opposition to public policy or morality 

In his work, Mayne points out that a custom or usage should be virtuous and in accordance with the Dharmashastras. In other words, it should not be immoral or contrary to the public interest.

Similarly, the Hon’ble High Court of Madras in the case of Mookka Kone Alias Vannia Kone And Ors. vs. Ammakutti Alias Vannichi Ammal And Anr. (1927) ruled that a custom cannot be imposed or enforced if it is against public policy or if it is immoral even though the existence of a custom is established.

In order to determine the morality of a custom, the Hon’ble Madras High Court in the case of Deivanayaga Padayachi vs. Muthu Reddi And Ors (1920) laid down that the morality or immorality of a custom must be tested on the basis of the consensus of the community as whole to the custom and not based on the consensus of a section thereof. Similarly,  the Hon’ble High Court of Bombay in the case of Hira Naikin vs. Radha Naikin (1912) observed that “a custom, wherein a temple dancing girl is allowed to adopt a girl with the intention of training her up in an immoral profession, is invalid.”

6. Non-opposition to any statutory law/Non-prohibition by any enactment 

A custom, for it to be valid, must not be in contradiction with any law or must not be prohibited by any enactment. 

While a custom that goes against ancient texts like the Smritis or commentaries isn’t automatically considered invalid, a custom that contradicts statutory law cannot be enforced. This principle was highlighted by the Privy Council in the case of Collector of Madura vs. Moottoo Ramalinga [(1868) 12 M.I.A 397], where it ruled that a clear and well-established custom could override written law under the Hindu law system.

Similarly, the Hon’ble Apex Court in Laxmi Bai vs. Bhagwant Buva (2013) observed that a custom can modify general personal law but does not prevail over statutory law, except when expressly exempted by such law.

In addition to the essentials discussed above, some other important factors concerning the validity of a custom are the onus of proof and the rule that a custom cannot be created by agreement.

Onus of proof 

The responsibility to prove that a practice is a custom falls on the person who claims it. In the case of Harihar Prasad Singh vs. Balmiki Prasad Singh (1974), the Supreme Court said clearly that if someone claims a custom that goes against the present law, it’s up to them to provide evidence to support that claim.

Furthermore, the Hon’ble High Court of Kerala in Arakkal Rohini And Anr. vs. Arakkal Koottappanakkal A.K (1978) observed that if a person asserting the existence of a custom fails to prove it, such person is governed or administered by Hindu law.

Similarly, the onus to prove that a family has adopted the law of the state where it is settled, disregarding the law of origin, also lies upon such party itself. It might be proved by indicating such adoption in the devolution of property and therefore by establishing the rules existing in the country of adoption have been accepted as the governing rules for such a family. 

The Hon’ble Supreme Court has also laid down the obligation/burden of proof in the case of Dr. Surajmani Stella Kujur vs. D.C. Hansdah (2001). The Hon’ble Apex Court in the said case ruled that it is essential for the party claiming to plead a custom to prove it as ancient, reasonable, and sure to establish such custom as a rule of law. The Privy Council made similar observations in the case of Ramalakshmi Ammal vs.  Sivanantha Perumal Sethurayar [(1872) 14 M.I.A. 570. The said observations were later noted and affirmed by the Hon’ble Supreme Court of India in one of its post-independence rulings in the case of Mirza Raja Pushpavati Vijayaram Gajapathi Raj & Ors. vs. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors. (1963).

Customs cannot be created by agreement

It is important to note that a certain usage or a rule adopted or followed between certain individuals, on the basis of a mere agreement between them, cannot be regarded to establish a new custom binding on others irrespective of the effect of the said rule or usage on such individuals. This law was laid down by the Privy Council in the case of Abraham vs. Abraham [(1863) 9 M.I.A 195].

Kinds of Customs

Although there are innumerable customs across the country, they can be classified into a few kinds depending upon various factors, mainly based on followers, territory, etc. Hindu law generally recognises three types of customs, which are as follows:

• Local Custom,
• Class Custom, and,
• Family Custom.

The aforementioned three kinds of customs are discussed briefly below.

1. Local Customs

Local customs are those that are limited to a particular locality or district and binding on its inhabitants.

The court/judicial committee in the case of Musammat Subhani vs. Nawab (1940) observed that it is inevitable that a custom followed in a particular district attains its enforcement from the fact of prolonged usage. Although it is observed that a custom must be ancient, the rule of antiquity doesn’t need to be traced back to the period beyond the memory of man. The committee pointed out that the principal requirement to be proved is that the usage was acted upon in practice for an extended period and with such certainty and invariability to signify that such custom had been submitted to as the accepted governing rule of that particular district or locality by common consent. This observation or ruling was noted and affirmed by the Hon’ble Supreme Court in Gokal Chand vs. Parvin Kumari (1952).

2. Class Custom 

Class customs are those that belong to and are observed or followed by a caste, sect, community, or by the followers of a particular profession or occupation, such as agriculture, trade, mechanical, art, and similar professions. Class customs, which include caste or community customs, cover the majority of the customs in Hindu personal law.

3. Family Custom 

Family customs relate to a particular family, specifically concerning the succession to an impartible succession to monasteries or religious foundations. 

While discussing the significance and binding nature of family customs, the Privy Council, in the case of Soorendranath v. Heeramonee (1868) 12 M.I.A 91], held that a family custom recognised by Hindu law is binding only on the family members. 

Moreover, when a family or a tribe governed by Hindu law asserts any custom that is contradictory to Hindu law, the family or tribe asserting it has the burden to prove the existence of such custom.

Significance of customs

The significance of custom as a source of law is so invaluable that the Privy Council in the cases of Collector of Madura vs. Moottoo Ramalinga [(1868) 12 M.I.A 397] and Vannia Kone vs. Vannichi Ammal (1927) had ruled that clear evidence of usage or practice of a custom would supersede or prevail over the written texts of the law. However, for the existence of any custom to be preferred over a written text of the law or conventional law, there must be satisfactory evidence to convince the court that a majority of persons consider such customary norms as binding. Such evidence must be proved by a series of consistent and continuous instances of the practice of such norm so that the commonality of the norm across a class, community, or family of people is indicated by the numerosity of the instances. It is also stated that a custom must be interpreted strictly when it contradicts the general law rules.

The mandate that clear proof of evidence would prevail or supersede the written text of law is established on the basis of reasons that are also indicated in the ancient texts. Smritis prescribes that customs must be enforced. Any law is ultimately an assessment or demonstration of the external world, and thus, the ancient customs of Hindus in India cannot be disregarded since they were closely blended with their social life. 

Opinions of scholars, commentators, or ancient text writers on the binding nature or conclusiveness of customs

The writers of ancient texts of law recognise the binding nature of custom, opining that every custom is based on a lost text of revelation.

• Narada suggests that “Custom decides everything and overrules the sacred law.”
• Manu suggests that the king’s duty is to decide all cases concerning civil law in accordance with the principles inferred from the local practices or usages and from the body of sacred law.
• Yajnavalkya emphasised that anything condemned by the public must not be practised even if it is prescribed in the smritis, and all customs, laws, practices, and usages must be followed and recognised by the king.

The binding nature of customs is also equally emphasised in modern times, as it was by ancient scholars, commentators, and text writers. This is evident in various decisions rendered by the Privy Council, one of which is Balwant Rao vs. Baji Rao (1920), wherein it was observed that the commentators do not formulate law but provide proof of customs that constitute the law.

Customs certainly played a crucial role as one of the momentous sources of ancient Hindu law. Medhatithi opines that the customs and usages of the people contributed to the core as it is found in the Smritis. Mayne described customs as the “residual and overriding body of positive law.” The significance of customs has also been emphasised appropriately in the smritis, which is evident from the realisation of the text writers that curbing customs would cause dissatisfaction or resentment.

Digest and Commentaries

The enormity of various Smritis and the distinctions among them led to the insignificance, incompleteness, and contradiction within the rules and procedures prescribed in Smritis. Accordingly, it was felt necessary to have a coordinated and harmonised work on Smritis to ensure a uniform and undisputed interpretation of the directions or statements prescribed in Smritis. Such harmonised work was also required to adapt and conform to the prevalent customs, practices, and usages across the countries. Therefore, such necessity led to the composition or the constitution of the ‘Commentaries’, which serve as one of the most significant sources of Hindu law. 

Digests and Commentaries are of paramount significance due to their inculcation and records of traditional or ancient customs and new customs that evolved with time and were believed to be worthy of recognition as a source of law. The digests and commentaries based on the texts of Smritis and Srutis modified, elucidated, and broadened the traditions, customs, and practices to harmonise and conform them with the prevalent practices and usages to fulfil the necessities that developed with the changing times. 

It is important to know that commentaries do not prescribe law by themselves but are mere explanations and interpretations of the law laid down in the ancient texts. The Privy Council noted this in Balwant Rao vs. Baji Rao (1920), where the Court observed that commentaries and digests do not enact the law but explain and provide evidence of the customs that constitute the law.

One of the principal differences between a digest and a commentary is the source of it or the number of smritis on which the work is based. A digest is like a collection of commentaries on different Smritis put together in one book, while a commentary usually focuses on explaining just one Smriti. Before the 12th century, most commentaries were based on a single Smriti. But after the 12th century, the approach changed, and commentaries started covering multiple Smritis. These combined works became known as Digests or Nibandhs.

Digests and commentaries were mostly written between 700 A.D. and 1700 A.D. The last commentary, ‘Vaijayanti,’ was authored by Nanda Pandit.

Digests and commentaries are regarded as more concrete and essential sources than the ancient texts due to their harmonisation and accordance with present customs and usages. The significance of digests and commentaries over various ancient texts, such as Smritis is also judicially recognised by the High Court of Bombay in Atmaram Abhimanji vs. Bajirao Janrao (1935). The Hon’ble High Court of Bombay in this case observed that the commentators, while stating the law prescribed in Smritis inculcated changes into it to harmonise it with the usages and practices followed by the people governed by the law it also noted that it the opinion of the commentators which is accepted in provinces where their authority is recognised. 

Therefore, the court observed that if any conflict arose between the ancient texts and the commentaries, the opinion stated in the latter must be considered and accepted. Hon’ble Justice Desai, in this case, opined that if the period of Dharmashastras was regarded as the golden age of Hindu law, then the period of digests and commentaries was the period of critical enquiry, consolidation, and expansion.

The following are the predominant commentaries written by various commentators.

• ‘Dayabhaga’, authored by ‘Jimutavahana’.
• ‘Mitakshara’, authored by ‘Vijnaneshwara’ on Yajnavalkya Smriti in 1100 A.D.
• ‘Viramitrodaya’, authored by ‘Mitra Misra’ in the 17th century in western India.
• ‘Vivada Chintamoni’, authored by ‘Vachaspati Misra’ in the 15th century in the Mithila language.
• ‘Vivada Ratnakara,’ authored by ‘Chandeshwara’.
• ‘Dayatattwa’ by ‘Raghunandana’.
• ‘Dayakramasangraha’ authored by ‘Sri Krishna Tarkalankar’.
• ‘Smriti Chandrika’ was authored by ‘Devan Bhatta’ in 1200 A.D in southern India.
• Parashara Madhaviya, authored by Madhavachara on Parashara Smriti.
• ‘Vyavahara Mayukha, ’ authored by ‘Nilkantha Bhatt. ’

Out of all the commentaries mentioned above, Mitakshara and Dayabhaga occupy a commanding position in India from the acceptability of their authenticity as the sources of Hindu law. The two commentaries are discussed in brief as follows.

• Mitakshara

Mitakshara is one of the most critical commentaries written by Vijnaneshwara on the Yajnavalkya Smriti, and it holds a significant place in Hindu law across India. It’s not just a commentary that explains the verses of the Yajnavalkya Smriti; it’s also considered a digest of various Smritis. 

This commentary is regarded for the application of Hindu law across the territory of India except the states of Bengal and Assam. Nevertheless, it is also considered while dealing with specific aspects where the opinion in the Mitakshara commentary accords with the views stated in the Dayabhaga commentary. Mitakshara covers almost all the elements of Hindu law, including the rules of succession, coparcenary, partition, debt, and Stridhan.

Moreover, a school of Hindu law has also been established that runs according to the laws, rules, and procedures prescribed in the Mitakshara commentary. The school has been named after the commentary and is therefore known as the Mitakshara school of Hindu law.

• Dayabhaga

Dayabhaga holds great value in the states of Bengal and Assam. It is, in fact, the primary commentary in the state of Bengal. The significance of this commentary in these two states is the same as that of the Mitakshara commentary in the rest of the Indian territory. 

The Dayabhaga, written by Jimutavahana, mainly focuses on issues related to inheritance and partition. Unlike Mitakshara, it takes a different approach to a son’s rights in coparcenary property and the rules around partition. The Dayabhaga is considered an essential text on partition, inheritance, and Stridhan, especially in Bengal. It stands out as one of the most influential works in Indian legal history, shaping the principles of Hindu law in the region.

The Mayukha, also called Vyavahara Mayukha, written by Nikantha Bhatt, is another essential commentary, especially popular in western India. It’s seen as more practical and straightforward than Mitra Misra’s Viramitramodaya. Bhatt focused on what’s needed, cutting out unnecessary details, which makes it a go-to text in places like Maharashtra and Gujarat.

Different places had different views on which commentaries were the most important. Because there were so many commentaries, each with its take on things, various schools of Hindu law emerged. Each school would pick one or more commentaries as the most important, which is why the interpretation of Hindu law can vary in different regions.

There are different schools of Hindu law, each with its way of interpreting the law. Some popular schools include the Madras, Bombay, Bengal, Mithila, and Banaras. For example, the Mithila school follows works like Vivada Chintamani, Vivada Ratnakara, and Madhawya, while the Bombay school follows texts like Vyavahara Mayukha and Mitakshara.  

Apart from Mitakshara, Kuber and Nanda Pandit wrote two critical works on adoption laws: Dattaka Chandrika and Dattaka Mimansa. These are widely followed across India, although some regions have different preferences. Dattaka Chandrika is more prevalent in southern India and Bengal, while Dattaka Mimansa is often preferred in Banaras and Mithila. Both of these works provide essential guidance on adoption laws in Hindu society.

In addition to the commentaries and works mentioned above, Vivadarnava Setu, which is also commonly known as Halhed’s Code, and Vivada Bhugarnava are the two notable digests among the sources of Hindu law. Both were composed/compiled during British rule in India. Vivadarnava Setu, or the Halhed’s Code, was compiled upon the request of Warren Hastings, and Jagannatha Tarka Panchanan compiled Vivada Bhugarnava upon the direction of Sir William Jones.

With the evolution of time, commentaries grew more authoritative and significant than Sruti and Smritis. This was due to certain obvious reasons, such as their conformity with the customs, usages, and practices currently prevalent in various parts of the country, which made them more considerable than other ancient texts or sources. 

However, A.M. Bhattacharjee in his book ‘Hindu Law and the Constitution’ opines that the Smritis, Srutis and even the commentaries ceased to be regarded as the sources of Hindu law during the end period of British rule with the enactment of the Constitution and the enactment of legislations such as the Hindu laws enacted in 1955 – 1956. Instead, various judicial decisions and certain statutory enactments were regarded as the two fundamental sources. Nevertheless, the role of Smritis, Srutis, or the commentaries as the sources of Hindu law cannot be disregarded in the evolution and development of Hindu law since the statutory enactments and the judicial decisions were ultimately based on such sources.

Modern sources

Modern sources of Hindu law are basically modified and edited versions of the ancient sources, with certain new additions to existing subject matters as per the changes in society. They may also include new laws on contemporary issues that weren’t available in the ancient sources. The fundamental modern sources of Hindu law include various legislations, judicial decisions, and justice, equity, and good conscience. 

The modern sources of Hindu law are based on the principles or fundamentals of the Hindu faith as prescribed or provided in the sacred texts and ancient sources. These also include the legal recognition of innumerable customs, usages, and practices that have been practiced for a long time. The said legal recognition may be either by enacting laws or by the judiciary through judicial decisions. Moreover, justice, equity, and good conscience serve as a universal source or fundamentals based on which any issue relating to Hindu law can be decided, even though there is no concrete law concerning such an issue.

The modern sources, unlike the ancient ones, are not rigid or unchanging. The contemporary sources evolve and develop according to the changes in society. The modern sources include every addition of a new law or a modification made to the pre-existing laws or regulations. Modern sources can be considered to include even the most recent decision or enactment. The contemporary sources of Hindu law are classified into three categories, i.e., Legislations, Judicial decisions and Justice, equity and good conscience, which are discussed in detail as follows.

Legislations

Legislation, including Hindu law, is the most prominent and concrete source of any legal area. It is one of the modern sources of law that has played a significant role in the development and evolution of Hindu law. Most of the legislation in Hindu law is enacted based on the fundamental principles laid down in the ancient sources of Hindu law. However, many legislations are passed with an inclination towards reforming Hindu law. A few legislations are also quite different from the ancient texts of Hindu law and replace them.

Legislation completed the task of gathering and integrating Hindu law’s various principles and rules that were scattered in ancient sources. It also selects ancient texts and works’ best practices, principles, and regulations. The consolidation and formulation of concrete legislation on Hindu law began during the British period, prior to which the law was disintegrated. The disintegration here does not refer to law on one particular aspect but to the variety and diversity in rules, principles,and practices across the country. The enactment of legislation ensured uniformity in Hindu law across the country. Even then, after integrating a good portion of Hindu law, it was still hard to have fixed law principles in many areas. 

Several important legislations have been enacted since the British period, contributing immensely to the development and evolution of Hindu law. Many of those legislations have also attempted to reform Hindu law. These legislations brought about numerous changes in the ancient practices and rules of Hindu law, forming a cardinal modern source of Hindu law.

The crucial legislations enacted and integrated, reformed, modified, and supplemented the existing ancient sources of Hindu law and can be viewed into two categories based on their period of enactment. The first category can be classified to include the legislations enacted before the independence, i.e., during the British rule or the British period by the British. In contrast, the second category can be classified to include the legislations that the Indian Parliament enacted after the independence. Therefore, on the said basis, the legislation can be classified as pre-independence and post-independence. 

Pre-independence legislations

Several important legislations were enacted in the pre-independence era. Legislation formulated during the British period played a prominent role in reforming and modifying Hindu law in India. Some of the significant legislations enacted during British rule are briefly discussed below.

• The Caste Disabilities Removal Act, 1850 (The Freedom of Religion Act) 

 The Caste Disabilities Removal Act, 1850, was a significant step towards ensuring freedom of religion. This Act dealt with the law of inheritance under Hindu law. It protected the right to inheritance of individuals who renounced their faith. The general rule or notion as per Hindu law was that an individual would lose his/her right to inheritance if he/she renounced or changed his/her religion. This Act reformed this aspect of Hindu law and modified the existing rule. According to this law, a person would not be deprived of his/her rights to inheritance on renunciation of his/her religion or losing of his/her caste. It abated all the laws that deprived an individual of his inheritance rights due to renunciation of caste or religion.

• The Hindu Widows’ Remarriage Act, 1856 

The Hindu Widows’ Remarriage Act, 1856, was one of the most progressive legislations of the British period, which was enacted with the objective of protection women’s rights. The legislation consisted merely of seven sections and dealt with and made changes in the area of women’s rights and rules of marriage in Hindu law. It legitimised widow remarriage in the Hindu society in certain instances, which was earlier not the case, and it also declared the rights and disabilities of widows on remarriage. 

The Act declared any custom or interpretation of Hindu law contrary to this Act invalid. The Act also secured the right to inheritance of widows and the right to the property to which she was otherwise entitled. It, however, provided that a widow would lose her right to her husband’s property by her remarriage. The legislation also contained a provision relating to the remarriage of a minor widow. As per the ancient practices and rules, widows were generally not entitled to the right to remarry someone after their husband’s death, and this legislation brought about reformation in this practice, securing the rights of widows. 

• The Indian Succession Act, 1865 

The Indian Succession Act, 1865 prescribed the law relating to intestate and testamentary succession in India. However, one of its provisions exempted the wills made by Hindus, Sikhs, Buddhists, and Jains from its application. The effect of the said provision was later nullified by the Hindu Wills Act, 1870. This Act was later replaced by the Indian Succession Act, 1925.

• The Native Converts Marriage Dissolution Act, 1866 

 The Native Converts Marriage Dissolution Act, 1866, dealt with divorce within Hindu law. As per ancient texts/sources of Hindu law, marriage is considered a sacrament and is regarded as undissolvable; hence, divorce was not considered an option in Hindu law. This legislation reformed that particular aspect of Hindu law by providing the right to divorce to individuals who would convert to Christianity. It legalised the dissolution of marriages in certain circumstances. 

This Act provided a right to an individual who was a Hindu before his marriage. Still, it later converted to Christianity to obtain a divorce or dissolve the marriage under the circumstances prescribed under the Act. An amendment in 1950 omitted the word ‘native’ from this entire Act post-independence, and the title of the Act was hence changed to The Converts Marriage Dissolution Act, 1856.

• The Hindu Wills Act, 1870 

The Hindu Wills Act, 1870, was enacted to regulate the law or procedure relating to the wills of the people practising Hindu, Sikh, Jain, or Buddhist faith or religion in the Bengal, Bombay, and Madras provinces. It prescribed the rules and regulations about the execution, revocation, revival, attestation, probate, and interpretation of the wills of the individuals in the provinces mentioned above. It provided an exception to Section 331 of the Indian Succession Act, 1865, and extended the application of specific provisions to all wills made by any of the individuals mentioned above. (Section 331 stated that the provisions of the said Act would not apply to wills made by Hindus, Sikhs, Buddhists, and Jains.) The Indian Succession Act, 1925, later replaced this act.

• The Special Marriage Act, 1872 

 The Special Marriage Act, 1872, dealt with the area or aspect of marriage and aimed to govern the marriages of individuals who could not be governed under Hindu law due to their non-profession of Hindu faith or religion and certain faiths and religions that were expressly provided in this Act, such as Islam and Christianity. 

It legalised marriage for atheists and those who did not profess or practise the Jewish, Christian, Muslim, Hindu, Sikh, Jain, Buddhist, or Parsi faith or religion. It prescribed certain conditions that a marriage must fulfill for it to be valid. 

It also prescribed the procedure for registering a marriage of the kind discussed in the Act. Later, an amendment was made to this Act in 1923, and the Act was replaced by The Special Marriage Act, 1954, which is currently in force and provides the validity of an interreligious marriage as well.

• The Indian Majority Act, 1875 

The Indian Majority Act 1875 was enacted to prescribe a certain age as the age of majority for various legal purposes. The Act, however, expressly provided that its provisions would not have any effect on the capacity of any individual in respect of matters relating to marriage, divorce, dower, adoption, and performance of religious rights or particularly upon the religion of the individual. Although the legislation did not prescribe a uniform age of individuals for all matters, it paved the way for considering a certain age of any individual as the age of majority, which was absent in ancient Hindu law.

• The Transfer of Property Act, 1882 

The Transfer of Property Act, 1882, was enacted to regulate and prescribe the law relating to the transfer of property across India. It replaced Hindu law relating to the transfer of property. For example, it governed the alienation of property by an individual practising the Hindu religion or faith, irrespective of the school of Hindu law followed by such an individual. The legislation consolidated the law relating to property affairs and applied universally to individuals from all religions. Therefore, this enactment also significantly influenced the Hindu law relating to property. Moreover, various amendments have been brought into the Act according to societal changes and are still in force. Hence, it is one of the significant enactments that form a modern source of Hindu law.

• The Guardianship and Wards Act, 1890 

The Guardianship and Wards Act, 1890 dealt with the appointment of guardians by the Court. The guardianship was deeply interconnected with the aspects of patriarchy, with fathers regarded as the sole guardians of their children, having complete authority over the affairs of their children’s lives, such as education, marriage, property, religion, etc. Such legal guardianship rights weren’t given to women based on the assumption that they lacked independent identity and were controlled by their husbands, who were the supreme authority. 

Moreover, in some parts of ancient Hindu law, the King was regarded as the guardian of all minors within their kingdom. However, this law enlarged the possibility of having different individuals as a child’s guardian, apart from the conventional ones. According to this Act, the court could have appointed specific individuals as the guardian of a child. It enabled the relative, friend, the collector of a province of any person desirous of being a guardian to become one. However, the appointment of such guardians was subjective to the provisions of the Act, including proper scrutiny. Hence, this legislation attempted to modernize Hindu law by bringing about significant changes in the law relating to guardianship.

• The Hindu Disposition of Property Act, 1916 

The Hindu Disposition of Property Act, 1916, is another pertinent modern source of Hindu law. Parallel to the Transfer of Property Act, 1882, it prescribed the law about property affairs among individuals practising the Hindu faith or religion. At the same time, the latter enactment concerned the transfer of property, and the former laid down crucial law concerning the disposition or bequest of property in favour of a non-existing individual. The term non-existing individual refers to/means an unborn child. 

The Hindu Disposition of Property Act, 1916, fundamentally attempted to eliminate the existing limitations relating to the authority of disposition of property to an unborn child. It validated the transfer or bequeath of a property by a Hindu individual for the benefit of an unborn child, which was earlier invalid. It denoted an essential development in Hindu law as it provided that the transfer of the property to an unborn child would take place as per the provisions of the Transfer of Property Act, 1882.

• The Indian Succession Act, 1925 

The Indian Succession Act, 1925, can be considered legislation enacted in continuation of the other enactments that prescribed the law concerning the affairs relating to property in Hindu law. It can also be regarded as part of the same series of enactments. This enactment repealed and replaced two existing laws, namely the Indian Succession Act, 1865, and the Hindu Wills Act, 1870.

It made changes to the Hindu law relating to Wills. It can be considered complementary and aiding legislation to the Hindu Disposition of Property Act, 1916. It is because, after the enactment of this Act, the disposition of property by an individual to another, when done through wills, was governed by the provisions of this Act. However, the continuation of the 1916 legislation cannot be regarded as the only objective of this Act. 

This enactment also consolidated the intestate and testamentary succession law and was uniformly applicable to all Indians. It governed every individual by a uniform set of rules and laws, irrespective of the diversity and the differences among the Hindu community across the country. It was amended several times to make further changes as and when required.

• The Hindu Inheritance (Removal of Disabilities) Act, 1928 

The Hindu Inheritance (Removal of Disabilities) Act, 1928, brought about an inclusive and reformative change in Hindu law. It changed the law relating to inheritance and abolished the exclusion of certain classes of heirs as legal heirs in matters of inheritance. It included such courses for the said purpose. The Preamble of the Act laid down the objective above. It also included the clearance of certain doubts as the other objective of the Act. However, this Act exempted the Dayabhaga School of Law from its application.

The Hindu Inheritance (Removal of Disabilities) Act, 1928, particularly removed the exclusion of a person of unsound mind (the Act uses the terms ‘lunatic’ and ‘idiot’) from the inheritance of property. After the enactment of this particular law, even a person of unsound mind was eligible to inherit the property. It laid the foundation for inclusivity in inheritance laws in Hindu law, changing the ancient position. Hence, it is an important modern source of Hindu law.

• The Hindu Law of Inheritance (Amendment) Act, 1929 

The Hindu Law of Inheritance (Amendment) Act, 1929, is also one of the key legislations enacted before independence. This enactment played an essential role in developing Hindu law in the country by guaranteeing the rights of inheritance to women and including new classes of heirs in intestate succession. This legislation made some critical changes in the order of the heirs. In addition to the changes, it also added new classes of female heirs in intestate succession. 

The law, however, was applied only to the Hindus following the Mitakshara school of Hindu law. Some of the classes or heroes added in the existing inheritance and succession laws included a son’s daughter, daughter’s daughter, sister, and sister’s son in the heirs between the ranks of the father’s father and the father’s brother. The law, however, exempted certain local and unique family customs from its application. Hence, it would be appropriate to state that the law introduced significant changes in the traditional Hindu law, which makes it a key contemporary source of Hindu law.

• The Child Marriage Restraint Act, 1929 

 The Child Marriage Restraint Act, 1929, was the first and foremost legislation on the prohibition and criminalisation of child marriage in India. There existed and continues to exist a long-standing and common practice of child marriage across the country, irrespective of faith and religion. This Act’s fundamental objective was to prohibit and penalise the practice of child marriages across the country, including among the communities practising the Hindu faith or religion. It prescribed an age of 18 years for a male individual and 14 years for a female individual; any person below the said age was a ‘child’ as per the provisions of this Act. 

It was first amended by the Child Marriage Restraint (Amendment) Act, 1938, to extend its scope and application. It was again amended by the Child Marriage Restraint (Amendment) Act, 1978, through which the legal age for marriage was increased. The Act was a stepping stone towards the modernisation of not just the Hindu law but also Indian society. Therefore, it forms a key modern source of Hindu law. This Act has now been repealed and replaced by the Prohibition of Child Marriage Act, 2006, which currently deals with the prohibition and criminalisation of child marriage in India.

• The Hindu Gains of Learning Act, 1930 

 The Hindu Gains of Learning Act, 1930, was enacted to eliminate doubts and prescribe a uniform law on the rights of an individual in a Hindu Undivided Family (HUF) with respect to the property acquired by him by means of learning or education. It was based on the concept of ‘Vidyadhana,’ which is also mentioned in the ancient texts of Hindu law. 

The term or concept of ‘Vidyadhana’ refers to the wealth/property of education. It is made up of two separate words, ‘Vidya’ and ‘Dhana,’ which respectively mean education or learning and wealth or property. According to this concept, a person becomes the sole and absolute owner of a property if he acquires such property by learning. 

This enactment provided that a property acquired by a coparcener by means of learning becomes a self-acquired property, implying that he has absolute and sole rights over it. Therefore, this Act is one of the essential modern sources of Hindu law as it codified, legally recognised, and enforced a practice of Hindu law in the form of legislation.

• The Hindu Women’s Right to Property Act, 1937 

The Hindu Women’s Right to Property Act, 1937, was enacted mainly to make changes to the existing Hindu law to give women better property rights. The Hindu Women’s Right to Property (Amendment) Act, 1938 amended it the next year, which made minor changes to the original enactment. This enactment gave a widow her entitlement to her deceased husband’s property, which was earlier given only to the son. It provided that the widow of a deceased Hindu would inherit the property along with other lineal descendants in the same manner as the son of the deceased individual would have inherited it. One of the landmark legislations laid the foundation for women’s rights in Hindu law. Hence, it is one of the most critical legislations, which can be regarded as a key contemporary source of Hindu law.

• The Arya Marriage Validation Act, 1937 

The Arya Marriage Validation Act, 1937, is another critical legislation that changed the ancient Hindu law concerning marriage norms and became a contemporary source of Hindu law. This law recognised the validity of intercaste, inter-subcaste, or even inter-religious marriages. As per the traditional Hindu customs and usages, marriages used to take place only within a caste or subcaste, and a marriage between two individuals belonging to different castes or different sub-castes was considered invalid. However, this law provided that no marriage would be invalid merely because the individuals belonged to different castes, sub-castes, or religions. The Act played a prominent role in the modernisation of Hindu law.

• The Hindu Marriage Disabilities Removal Act, 1946 

 The Hindu Marriage Disabilities Removal Act, 1946, was enacted to eliminate certain disabilities or doubts about marriage under Hindu law. Its purpose was similar to that of the previously mentioned legislation, and it further modernised Hindu law relating to marriage by making major changes to it. 

While the previously mentioned legislation recognised the validity of intercaste marriages, this legislation recognised the validity of marriages between two individuals having the same Gotra or different subdivisions of a caste. It provided that no marriage would be invalid merely because the individuals belonging to the same gotra or different subdivisions of a caste declared the marriage between such individuals as legally valid. It was later repealed by the Hindu Marriage Act 1955 and was the last pre-independence legislation to be regarded as a potential source of Hindu law.

Although there were constant modifications in the Hindu law, it was still believed to be scattered and non-conforming with specific societal changes. Hence, a Hindu law committee was constituted in 1941 to recommend changes to Hindu law. The committee suggested that Hindu law be codified gradually in phases or stages. It recommended that the commencement of Hindu law’s codification process should be from the law on marriage and intestate succession. 

The committee mentioned above was again brought back in 1944 under the chairmanship of Sir Benegal Narsing Rau. The committee, led by Sir B. N. Rau, formulated a uniform code of Hindu law that would apply to all Hindus. The said code of Hindu law included the progressive aspects provided in the rules of various schools of Hindu law. The code bill was mainly criticised on the ground that Hindu law had a very vast and complicated structure and was hence impossible to give a legislative form that would be limited in nature. Later on, the Hindu code bill was ultimately divided into four parts post-independence, and four significant laws were passed that codified the Hindu law together. The said laws are discussed later in this article.

Post-independence legislation

Most of the legislations enacted after independence were majorly in the form of a consolidation of the pre-independence legislations or an amendment to the existing legislations. Post-independence legislation was passed by drawing inspiration and direction from the pre-independence legislation. Nevertheless, timely changes have been made in the legislations enacted after independence to ensure the conformation of laws with the societal changes. Moreover, Hindu law has been mainly consolidated and codified into four major enactments,which are henceforth discussed. Some crucial legislations that can be regarded as the contemporary and the most recent sources of Hindu law are discussed below.

• The Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1949 

The Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1949, was one of the major legislations that promoted the cause of recognition of women’s rights under Hindu law and in the Indian society in general. It recognised the right to maintenance of a Hindu wife and also the right to a separate residence in certain instances. This enactment gave married Hindu women the right to reside separately and to get maintenance from their husbands in cases such as domestic violence, etc. It was later repealed and replaced by the Hindu Adoption and Maintenance Act, 1956, which is currently in force.

• The Hindu Marriages Validity Act, 1949 

 The Hindu Marriages Validity Act, 1949, was enacted with the same objective as that laid down in the Arya Marriage Validation Act, 1937, and the Hindu Marriage Disabilities Removal Act, 1946, both enacted before independence. The Act’s primary objective was to validate all marriages between Hindus, Sikhs, and Jains, irrespective of their castes, subcastes, and sects. It stated that no marriage shall be presumed or declared invalid merely because the parties to the marriage belonged to different religions, castes, sub-castes, or sects. The Hindu Marriage Act, 1955, later repealed this Act.

• The Special Marriage Act, 1954 

 The Special Marriage Act, 1954, repealed and replaced the pre-independence law of 1872 on the same subject matter. This Act provides a unique form of marriage in some instances, such as inter-religious marriages. The key difference between the Special Marriage Act 1954 and the Hindu Marriage Act 1955 is that the former enactment provides a uniform law for marriage irrespective of the religion of the individual entering into a marriage. It does not prescribe religious customs or practices as essentials or requisites for marriage. On the other hand, the latter enactment is a personal law about marriages according to Hindu law and customs.

The succession of property of individuals married as per the provisions of this Act is governed by the Indian Succession Act, 1925, and not by the Hindu Succession Act, 1956. It lays down the procedure of solemnization and the registration of marriages. It also prescribes the effects of marriage as per the provisions of this Act, one of which is succession. It also provides for judicial separation, restitution of conjugal rights, and divorce and prescribes the procedure and grounds. The Act also penalises bigamy. It is a key legislation that provides uniform law, legal backing, and support for interreligious marriages, which is not available in the personal laws.

The codification and consolidation of Hindu law was one of the most critical legislative tasks completed after independence. Soon after independence, the Indian Parliament split the Hindu code bill proposed before Independence and enacted four cardinal legislations on Hindu law, which codified, consolidated, and replaced the numerous legislations on Hindu law that existed then. The said four significant legislations are discussed as follows.

• The Hindu Marriage Act, 1955 

The Hindu Marriage Act, 1955, is one of the four most fundamental and concrete legislations of Hindu law, which provides the law concerning marriages in the Hindu society. It amended and consolidated the concepts relating to marriage under Hindu law available in the various ancient texts, works, and legislations formulated and enacted before independence and codified them into a new enactment. It provides conditions, procedures, ceremonies, and marriage registration under Hindu law. The Act does not expressly give any specific ceremonies but provides that a marriage shall take place according to the customary rituals and ceremonies of the individuals. However, it expressly mentions Saptapadi as one of the ceremonies, making it an essential ceremony for a Hindu marriage.

The Hindu Marriage Act, 1955, introduced various new concepts and changes in the conventional and ancient Hindu law. It includes the concepts of judicial separation, restitution of conjugal rights, and, most importantly, the concept of divorce, which was available in ancient Hindu law. According to the traditional Hindu law, customs, and practices, marriage is a sacrament, and hence divorce was not regarded as an option. It introduces divorce as a part of contemporary Hindu law and prescribes various grounds for divorce.

• The Hindu Minority and Guardianship Act, 1956 

The Hindu Minority and Guardianship Act, 1956, is one of the four most important and concrete legislations of Hindu law, which prescribes the law concerning minority and guardianship. It amended and consolidated the concepts relating to minority and guardianship under Hindu law that were available in the various ancient texts and enactments made before independence and codified them into a new enactment. 

It lays down the definition of a minor and prescribes four kinds of guardians, including the natural guardian. It specifies the individuals who can be considered as a minor’s natural guardians. It also provides for the appointment of a testamentary guardian. The Act sets out the powers of a natural and a testamentary guardian. It provides that the welfare of a minor must be given primary importance while considering any aspect relating to the guardianship of such a minor.

One of the essential points to note about the Hindu Minority and Guardianship Act, 1956, is its relation or coordination with the Guardians and Wards Act, 1890. The former legislation operates supplementally or in addition to the latter one and is not contradictory. However, certain exceptions exist where there is a contradiction between the two Acts specified by specific provisions of the Hindu Minority and Guardianship Act, 1956.

• The Hindu Succession Act, 1956 

 The Hindu Succession Act, 1956, is one of the four most cardinal and concrete legislations of Hindu law, providing the law relating to succession. It amended and consolidated the concepts about succession under Hindu law that were available in the various ancient texts and enactments made before independence and codified them into a new enactment. 

This Act provides a uniform and extensive law on the subject of devolution of property. It lays down the key definitions and procedures of inheritance and succession. It declares any prior existing law, custom, practice, or usage invalid if it is inconsistent with the provisions of this Act. It also recognises women’s property rights on the same level/standard as men’s rights of inheritance/succession. It empowers women with absolute rights, which was not the case in the previous laws on succession. 

It also recognises the rights of an unborn child. The Act governs succession among Hindus, Sikhs, Jains, and Buddhists. However, it exempts the property governed and regulated by the Indian Succession Act, 1925, as per Section 21 of the Special Marriage Act, 1954. It is one of the key modern sources of Hindu law, as it has made various amendments/changes to ancient Hindu law and laid down new rules relating to succession.

• The Hindu Adoption and Maintenance Act, 1956 

 The Hindu Adoption and Maintenance Act, 1956, is one of the four most important and concrete legislations on Hindu law. It lays down the law on adoption and maintenance. It amended and consolidated the legal concepts relating to maintenance and adoption under Hindu law that were available in the various ancient texts and statutes enacted before independence and codified them into a new enactment. 

The Act lays down the requisites, obligations, and other aspects relating to adoption and stipulates the law on maintaining children, wives, in-laws, etc. It declares any prior existing law, custom, practice, or usage invalid if such law is inconsistent with the provisions of this Act. 

It is a comprehensive enactment covering almost every aspect of adoption and maintenance. It recognises the rights of the adopted child as well as the rights of the adoptive parents. It enables any major individual of sound mind to adopt a child. It, however, provides that such adoption should be with the consent of the husband/wife if the individual adopting a child is married. It also provides conditions and other regulations relating to maintenance.

The four extensive legislations discussed above cover and lay down the law relating to almost every major aspect of Hindu personal law. Some of the other aspects not covered by these legislations are covered by other enactments. Moreover, the following are some of the other important legislations enacted after independence that can be regarded as potential modern sources of Hindu law.

• The Child Marriage Restraint (Amendment) Act, 1978 

The Child Marriage Restraint (Amendment) Act, 1978, is one of the reforming enactments of early independent India. It was a necessary amendment to the Child Marriage Restraint Act, 1929. This amendment increased the legal age for marriage, below which a person was regarded as a ‘child’. It increased the age for marriage for a female from 14 to 18 years and from 18 to 21 years for a male. Accordingly, it also made changes to the Hindu Marriage Act, 1955, and the Indian Christian Marriage Act, 1872, in which the marriage age was 15 and 18 years for females and males, respectively. 

Additionally, the amendment also strengthened the provisions relating to the criminalisation of the offence of child marriage by making them more stringent. It made the offence of child marriage a cognizable offence in some instances. It can be regarded as one of the significant modern sources of Hindu law as it brought about significant changes to the personal law concerning marriage. This Amendment Act, along with the original enactment of 1929, was later repealed and replaced by the Prohibition of Child Marriage Act, 200,6 which is currently in force.

• The Marriage Laws (Amendment) Act, 1976 

The Marriage Laws (Amendment) Act, 1976 was another significant amendment made to all the personal laws, mainly to make changes to the law concerning marriage. It introduced a few changes that had a broad impact. It aimed to achieve gender equality by providing similar grounds for divorce and judicial separation for both men and women. Besides, it also introduced the option of divorce by mutual consent. Additionally, it simplified the complicated process of obtaining a divorce, etc. It is an essential modern source of Hindu law due to the cardinal changes made to Hindu law about marriage, particularly divorce, which were unavailable under ancient texts and works on Hindu law.

• The Hindu Succession (Amendment) Act, 2005 

The Hindu Succession (Amendment) Act, 2005, is the most essential amendment to the Hindu Succession Act, 1956. It introduced significant changes in the Hindu law of inheritance; hence, it is a key modern source of Hindu law. The Act’s primary objective was to achieve gender equality in matters of inheritance by treating both men and women similarly. It, therefore, gave equal rights to women as that of men. The Act’s fundamental goal was to protect women’s rights to property and estate. It allowed the inheritance of the father’s property by the daughter by prescribing their recognition as the legal successors. However, it mainly deals with changes to the Mitakshara school of Hindu law. A few of the essential changes made by this amendment are as follows.

• It gave coparcenary rights to a daughter by making her a coparcener to the ancestral property.
• It authorized a female co-parcener to make a will of her interest in the Mitakshara coparcener property.
• Accordingly, the enactment affects the statutory partition of the coparcenary property on the death of a coparcener.
• The Prohibition of Child Marriage Act, 2006 

The Prohibition of Child Marriage Act, 2006, prohibits and criminalises child marriage. As mentioned earlier, it replaced the previous law of 1929 on child marriage. However, unlike previous enactments on the issue, it not only prohibits and penalises child marriage but also addresses various issues that arise out of it and lays down certain regulations regarding the same. 

It contains provisions relating to the maintenance and residence of the children who are the victims of child marriages, the maintenance and custody of children born out of child marriages and the legitimacy of such children, etc. Moreover, it also strengthens the provisions relating to the criminalisation of child marriage by making the offence non-bailable along with cognizable. 

Additionally, the enactment increases the punishment for the offence and provides for the appointment of Child Marriage Prohibition Officers. These officers are entrusted with various duties, including preventing child marriages, spreading awareness about the evils of child marriage, aiding and helping in the prosecution of offenders, etc. The law addresses various issues and is comprehensive and more progressive than previous legislation on child marriage.

In addition to the numerous legislations on Hindu personal law discussed above, other aspects of law, such as criminal law or the law relating to contracts, are governed uniformly as per the provisions of the Indian Contract Act, 1872, and the Indian Penal Code, 1860, etc., which can also be regarded as the sources of Hindu law.

Judicial decisions

The doctrine of stare decisis, which means “stand by the things decided, ” introduced by the British administration, played a significant role in the evolution of Hindu law and law in general in India, forming judicial precedents as a prominent source of law. According to this doctrine, the decisions rendered by the Supreme Court are binding upon all the lower courts, including High Courts, but the Apex Court itself is not strictly bound by it and can change the law or interpretations. Similarly, the decisions rendered by the High Courts are binding upon the subsequent subordinate courts, but such decisions do not bind other High Courts. 

Article 141 of the Indian Constitution states that the law laid down by the Supreme Court is binding on all courts within the country. This means that whenever the Supreme Court delivers a judgment, its interpretation of the law must be followed by all lower courts, ensuring uniformity in the application of the law across India.

Judicial precedents are an essential source of law, and when it comes to Hindu law, decisions made by the Privy Council play a significant role. This is because, during the British colonial period, the Privy Council was responsible for interpreting Hindu law in many cases related to Hindu personal law. As a result, their rulings have had a lasting impact on how Hindu law has been understood and applied, making their decisions an essential part of contemporary Hindu law.

Moreover, the Hon’ble Supreme Court, even today, takes note of the decisions of the Privy Council whenever and wherever relevant and necessary since it had a significant role in the administration of justice during the British period.

Former High Court judge of Allahabad, Justice R.K. Agarwal, in his book titled “Hindu Law” suggests that “A precedent is not merely an evidence of a law but also a source of law and the courts are bound to follow the precedents.” He further suggested that legislations and judicial precedents have altered, modified, and complemented the ancient texts of theoretical or philosophical Hindu law. As a result, both have now come out as key sources of the Hindu law that is prevalent today. 

It cannot be denied that the judiciary has played a significant role in shaping Hindu law in India. During British rule, the Privy Council and English judges, with input from priests, made decisions on Hindu law matters. These decisions had a significant impact on how Hindu law developed over time. The way the law was interpreted and adjusted in court rulings helped ensure that it was fair, logical, and in line with the needs of society. So, judicial decisions have been important in Hindu law’s ongoing evolution.

Hence, these judicial precedents form a key source of Hindu law. Several judicial decisions are now available on almost every subject or topic of Hindu law and are given priority over the commentaries in various instances. The decisions rendered by the Privy Council on multiple issues relating to which the Hon’ble Supreme Court of India has not given any ruling or pronouncement are still binding and are accordingly taken into regard.

In the case of Udhao vs. Beshar [AIR 1946 Nag. 203], Hon’ble Justice Bose observed that the laws administered by courts today are the ‘judge-made laws’. He pointed out that the ancient sages didn’t directly address modern issues. And even when they did, their suggestions were often vague or unclear, making it difficult for commentators to understand their meaning fully. In cases like these, the courts stepped in and changed Hindu law. These adjustments are what have shaped the law we have today.

Some of the most notable changes judges made to Hindu law include adjustments to the duty of a son to pay his father’s debts while claiming rights over the father’s ancestral property. Another example is the extension of this duty even during the father’s lifetime, along with the complete authority of the father over ancestral property under the Dayabhaga school of law. These changes were often made when English judges found the ancient texts unclear or unhelpful or when they applied principles of logic, justice, equity, and good conscience.

There are differing opinions on how much judicial decisions impacted Hindu law. One view is that the changes made by English or European judges were mainly because they didn’t give much importance to the ancient Sanskrit texts and instead introduced Western or English ideas into Hindu law. On the other hand, some believe that these modifications actually limited the natural development of Hindu law, stopping it from evolving on its terms.

Judicial precedents play an essential role in Hindu law in two ways. First, many key rules and principles from ancient Hindu law have already been explained in past court decisions. So, when these rules arise again, we don’t have to look at the old texts. Instead, we can refer to past court rulings where these rules were already discussed.

Secondly, judicial decisions also play a key role in Hindu law by introducing new principles, rules, and regulations. Courts modify and update the traditional Hindu law by applying new interpretations and legal principles. Adapting old laws with fresh insights has significantly contributed to the development of Hindu law over time.

Below are some of the important judicial precedents that have brought about key changes in ancient Hindu law and formed a key source of Hindu law.

Shastri Yagnapurushdasji vs. Muldas Bhudardas Vaishya (1966)

Facts of the case

The case of Shastri Yagnapurushdasji vs. Muldas Bhudardas Vaishya (1966) is a significant judgement by the Supreme Court about which groups are considered part of the Hindu religion under Hindu law. The case involved an appeal against a decision made by the Bombay High Court, which had supported the lower court’s ruling. This case helped clarify how different sects within Hinduism are recognized and treated under the law.

In this case, the respondent, Mr. Muldas Bhudardas Vaishya, was the president of the Maha Gujarat Dalit Sangh in Ahmedabad. He filed a declaration to argue that non-Satsangi Harijans should have the right to enter and worship in Swaminarayan temples, just like other followers of the faith.

The followers of the Swaminarayan Sect, known as Satsangis, opposed this declaration by the respondent, claiming that the sect was a completely different and separate sect and did not form part of the Hindu religion. 

They contended that the temples of the Swaminarayan Sect would not fall under the category of temples mentioned under the State legislation of the State of Bombay enacted concerning the Hindu places of worship and temples entry (hereinafter referred to as ‘the state legislation’). They filed a suit for an injunction order against the respondent and non-Satsangi Harijans, preventing them from entering the Swaminarayan sect temples.

The Trial Court ruled that the Swaminarayan Sect was not a distinct and separate sect from the Hindu religion but a part of it, and hence, the temples of the sect fell within the scope of temples under the state legislation. However, the Court noted that the non-Satsangi Harijans failed to establish any custom, practice, or usage of them worshipping or using the temples of the Swaminarayan Sect. Hence, the Trial Court ultimately delivered the decision in favor of the appellants, i.e., followers of the Swaminarayan Sec, and issued an injunction as claimed by them.

The appellants appealed to the High Court of Bombay against the Trial Court’s decision. The High Court agreed with the Trial Court that the Swaminarayan Sect was part of the Hindu religion and not a separate sect. However, because of this, the High Court cancelled the injunction order made by the Trial Court. Finally, the appellants took the matter to the Supreme Court to challenge the High Court’s decision.

Issues

• Whether the Swaminarayan Sect formed a distinct and separate sect and was not a part of the Hindu religion?
• Does the temples of the Swaminarayan Sect fall within the State legislation?

Judgement

The Hon’ble Apex Court, in this case, attempted to define the term ‘Hindu. ’ The court referred to texts that mention, explain, or describe the Hindu religion, including the works and views of various eminent scholars and intellectuals on its evolution while deciding whether the Swaminarayan Sect formed a part of religion. It referred to and noted the history of the religion and various ancient texts such as the Vedas, etc. 

The court pointed out that defining “Hindu” is tricky because the religion is vast and diverse. It isn’t just about worshipping one God or deity. The court quoted a description of Hinduism, saying that it reflects the many different groups that make it up. Over time, Hinduism has absorbed and included many beliefs and practices, making it more of a collection of different ideas than a single, unified group. 

The court noted that Hinduism is a vast and flexible religion. It explained that the religion includes many traditions, customs, practices, and usages, making it diverse and adaptable. 

The court observed that the characteristics of the Swaminarayan sect were similar to those of the Hindu religion. As a result, the Supreme Court ruled that the Swaminarayan sect was not separate from Hinduism but was a part of it. It further stated that the temples of the Swaminarayan sect fell under state laws designed to prevent discrimination against Harijans. Therefore, the court decided non-Satsangi Harijans should not be denied entry into these temples.

This ruling is an essential milestone in Hindu law. It declared the Swaminarayan sect a part of Hinduism and stressed that Harijans cannot be denied entry into its temples. This decision helped define the extent of Hinduism and its practices, making it an important legal precedent.

Smt. Saroj Rani vs. Sudarshan Kumar Chadha (1984)

Facts of the case

The case of Smt. Saroj Rani vs. Sudarshan Kumar Chadha (1984) is an important one in Hindu law. It dealt with Section 9 of the Hindu Marriage Act, 1955, which allows a married couple to seek restitution of conjugal rights if they are on the verge of separation. The main issue was whether this section was in line with the Constitution.

In this case, the validity of Section 9 of the Hindu Marriage Act, 1955, which provides the remedy of restitution of conjugal rights, was challenged. The argument was that it violated Article 14 and Article 21 of the Constitution. This contention relied on an earlier decision by the Andhra Pradesh High Court, which had declared Section 9 unconstitutional, stating that it conflicted with these fundamental rights.

The Andhra Pradesh High Court had said that Section 9 of the Hindu Marriage Act, 1955, is arbitrary. It observed that the provision forced individuals to live together even when they had decided to seek a divorce. This violated an individual’s right to privacy, especially of a woman, and was therefore violative of fundamental rights.

Issues

• Whether Section 9 of the Hindu Marriage Act, 1955, constitutionally valid?

Judgement

The Supreme Court held that Section 9 of the Hindu Marriage Act, 1955, was valid and did not violate Articles 14 and 21 of the Constitution. The court explained that the provision for the restitution of conjugal rights plays a vital role in saving marriages and preventing them from falling apart. It disagreed with the Andhra Pradesh High Court’s view that the provision was unconstitutional. 

This decision is important because it discusses a modern idea introduced into Hindu law that wasn’t part of traditional law, making it a key contemporary source of Hindu law.

Sarla Mudgal vs. Union of India (1995)

Facts of the case

The case of Sarla Mudgal vs. Union of India (1995) is a landmark judgment in Hindu law. The Supreme Court dealt with several petitions related to bigamy, mainly focusing on Hindu men converting to Islam to marry a second wife, which was allowed under Islamic law but prohibited under Hindu law.

All the petitions were filed by wives of husbands who had converted to Islam only for second marriage and the central issue in all of these petitions was that the sole purpose of conversion to Islam was having a second wife and committing bigamy which is void as per Hindu law, and also a penal offence as per Section 494 of the Indian Penal Code, 1860 (Now Section 82(1) of the Bharatiya Nyay Sanhita, 2023). 

However, the only way through which this could have been avoided was by converting to Islam as up to four marriages were valid as per Muslim law. The petition filed by one such wife along with Ms Sarla Mudgal, who worked for a women’s NGO, was treated as the main petition. The petitions prayed for a restraining order against such conversions for committing bigamy and punishment-evading methods since the said acts violated their marital rights under personal law.

Issues

• Whether an individual who is already married under Hindu law marry a second time and have a second wife by converting to Islam?
• Is the second marriage valid if the first wife continues to be a Hindu and if the marriage with such wife is not dissolved before the second marriage?

Judgement

The Hon’ble Apex Court, in this case, ruled that a marriage under Hindu law can be dissolved only on the grounds provided under Section 13 of the Hindu Marriage Act, 1955. The first marriage would not be dissolved since conversion was not a ground under the said provision. It is observed that until a marriage is dissolved, neither husband nor wife can solemnize a second marriage. 

The court noted that a marriage under the Hindu Marriage Act, 1955, gives rise to certain rights and duties of both parties. It observed that permitting the dissolution of marriage by one party by converting to another religion and adopting a different personal law would result in the frustration of the marital rights of the other party, who continues to practise Hinduism. Hence, the court ruled that the second marriage of an apostate husband would be invalid/illegal for the reason that such husband’s wife married to him under the Act above continued to be a Hindu.

In this case, the Supreme Court applied the doctrine of indissolubility, a principle from traditional Hindu law. According to this doctrine, a Hindu marriage cannot be dissolved just because one of the spouses converts to another religion. The court ruled that converting to a different faith and marrying someone else would go against justice, equity, and sound principles. Therefore, the court held that a Hindu man who converted to Islam to marry a second wife was committing bigamy, which was illegal under Hindu law. 

Gita Hariharan vs. Reserve Bank of India (1999)

Facts of the case

The case of Gita Hariharan vs. Reserve Bank of India (1999) is an essential decision regarding guardianship rights under Hindu law, especially regarding child rights. In this case, Ms. Gita Hariharan challenged specific provisions of the Hindu Minority and Guardianship Act, 1956, and the Guardians and Wards Act, 1890. The issue revolved around whether a mother could act as a natural guardian of her child without the father’s consent, especially after the father’s death. This case highlighted the need to interpret guardianship laws in a way that reflects modern family dynamics and women’s rights.

In this case, Ms. Gita Hariharan, the petitioner, married Dr. Mohan Ram, and the couple had a minor child. However, they were going through a divorce, which was pending in court. During this time, Ms. Hariharan applied for 9% relief bonds in her son’s name to the Reserve Bank of India (RBI) in December 1984. She had designated herself as the child’s natural guardian in the said application,, which was rejected by the RBI on the grounds that the minor child’s natural guardian was his father. Hence, she had to get a signature from the child’s father or a certificate of guardianship in her favour from a competent authority.

The petitioner, therefore, filed a writ petition challenging the Constitutional validity of Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which prescribed a father as a son’s natural guardian and provided a mother with such rights of guardianship after the father. She contended that the said provision violated the right to equality under Articles 14 and 15 of the Constitution.

Issues

• Whether Section 6(a) of the Hindu Minority and Guardianship Act, 1956, violates the right to equality under Articles 14 and 15 of the Constitution.

Judgement

The Hon’ble Apex Court delivered a notable decision in this case, laying down equal guardianship rights for the father and mother. The Court held both father and mother can be a natural guardian for a child and no parent can be considered as preferential over the other regarding guardianship of a child. It observed that the welfare of a child must be the fundamental criteria that must be examined while dealing with cases of guardianship rights. It pointed out that a strict interpretation of provisions or statutes might not be appropriate and favourable to a child’s growth. The court, in this case, stressed that the welfare of the child should be the primary concern in any guardianship issue. It observed that the law needed to be interpreted in a way that would promote the child’s well-being and growth. .

The Supreme Court interpreted Section 6(a) of the Hindu Minority and Guardianship Act, 1956, by aligning it with the Constitutional principles of equality. The Court looked at the provision in the context of Section 4(b) and Section 4(c) of the Act. It emphasized that Section 4(c) defines “natural guardian” as any of the guardians mentioned in Section 6 of the Act. 

The court said that both parents, not just the father, could be considered natural guardians, promoting a more balanced and fair approach to guardianship in line with the child’s welfare and rights. It observed that an interpretation to give a preferential position to a father over a mother in a matter of guardianship would mean giving scope for gender bias and any such interpretation would be a violation of the Constitution.

The court said that a mother can be considered the natural guardian of a child, even while the father is alive, if it is in the best welfare of the child. 

This ruling is an important step forward in Hindu law, especially when it comes to child guardianship. It made sure that both parents have equal rights, with the child’s welfare being the main focus. The decision challenged the old idea that fathers had more rights than mothers in guardianship matters, creating a more balanced and fair approach. This case is a key source of modern Hindu law, showing how the law has evolved to ensure equality and prioritize what’s best for the child.

Vineeta Sharma vs. Rakesh Sharma (2020)

Facts of the case

The case of Vineeta Sharma vs. Rakesh Sharma (2020) is a landmark ruling that ensured daughters have equal coparcenary rights in certain cases. Even though the Hindu Succession Act, 1956, was amended in 2005 to grant women equal rights in family property, there was still confusion about how the amendment applied. The Supreme Court, in this case, said that daughters have coparcenary rights in their father’s property, including cases where the father passed away before the amendment. 

In this case, Ms. Vineeta Sharma’s father, Mr. Shri Dev Dutt Sharma, passed away in 1999, leaving behind his wife, one daughter, and three sons. One of the sons had passed away earlier in 2001. After her father’s death, Ms. Vineeta Sharma claimed a share of her father’s ancestral property, asking for one-fourth of it. 

However, her brothers denied her the share, saying she didn’t have co-parcenary rights to the property. This disagreement led to the case being taken to court. They contended that the Hindu Succession (Amendment) Act, 2005, was not applicable in this case since their father died in December 1999, i.e., before the amendment was enacted or came into effect.

The appellant filed a suit against her brothers and her mother claiming her coparcenary rights in her father’s property which the Trial Court dismissed and subsequently by the Hon’ble High Court of Delhi on which ruled that the Hindu Succession (Amendment) Act, 2005 will not apply to the instant case since the enactment is not retrospective.

Therefore, the appellant has appealed before the Hon’ble Supreme Court claiming for her coparcenary rights or 1/4th share in her father’s property and challenging the decision of the High Court of Delhi.

Issues

• Whether the Hindu Succession (Amendment) Act, 2005 is retrospective, prospective or retroactive in nature?
• Whether equal coparcenary rights can be claimed by a daughter after her father’s death as per the Hindu Succession (Amendment) Act, 2005 if the death has taken place before the enforcement of the Act?

Judgement

In this case, the Supreme Court said that the Hindu Succession (Amendment) Act applied to the situation. It stated that a son’s right to be a co-parcener comes into existence at birth, and the same right applies to daughters with the amendment. The court said that a daughter, whether born before or after the amendment, is considered a co-parcener in the ancestral property. 

The court also clarified that a daughter’s right to claim her share of ancestral property doesn’t depend on whether her father was alive when the amendment occurred. It stated that for someone to be a co-parcener, it’s not necessary for the previous co-parcener to be alive. The Supreme Court ruled that Section 6 of the amendment applies retrospectively, meaning it covers all daughters, even if they were born before the amendment was passed.

In this case, the Supreme Court overruled an earlier decision from Smt. Prakash vs. Phulwati (2015), where it was ruled that the 2005 amendment to the Hindu Succession Act didn’t apply retrospectively. The Court clarified that the amendment applies to daughters, even if they were born before the amendment was passed and even if their father had passed away before the amendment. This ruling ensures that daughters have the same rights as sons in ancestral property, no matter their birth, making it a key ruling in modern Hindu law.

Arunachala Gounder vs. Ponnuswamy (2022)

Facts of the case

The case of Arunachala Gounder vs. Ponnuswamy (2022) is one of the more recent decisions on inheritance and succession under Hindu law. The Supreme Court was reviewing an appeal regarding a property partition, where the Madras High Court had said that only the son was entitled to the property.

In this case, Gurunatha Gounder had two sons, Marappa Gounder and Ramaswamy Gounder. Marappa Gounder passed away before his brother, Ramaswamy. Marappa’s daughter was Kuppayee Ammal. Ramaswamy had one son, Gurunatha, and four daughters: Thangammal, Ramayeeammal, Elayammal, and Nallammal. 

Marappa Gounder purchased a property in 1938, inherited by his daughter Kuppayee Ammal after he died in 1949. Kuppayee Ammal died in 1967 without having any heirs. Accordingly, after Kuppayee Ammal’s death, the property was inherited by Marappa Gounder’s brother’s (Ramaswamy Gounder’s) son, Gurunatha Gounder.

However, Thangammal, Ramaswamy Gounder’s daughter, filed a partition suit claiming that all five siblings, including her, were entitled to equal shares, i.e., 1/5th share of the property, and declared that Gurunatha Gounder could not be considered as the only successor of the property. On the other hand, the legal heirs of Gurunatha Gounder claimed that since Marappa Gounder died in 1949, before the enactment of the Hindu Succession Act, 1956, he would be governed as per old and traditional Hindu law which makes Gurunatha Gounder the only person entitled to get coparcenary and inheritance rights of the property since the daughters were not entitled to inherit the property as per the traditional Hindu law. 

The Trial Court upheld the contention of Gurunatha Gounder’s legal heirs and held that he was the only successor of the property and that the property would be inherited by his legal heirs after his death. The High Court of Madras also upheld the decision of the Trial Court, stating that Gurunatha Gounder was the only person entitled to coparcenary and inheritance rights of the property as per the doctrine of survivorship. So, an appeal was filed in the Supreme Court to challenge the High Court’s decision.

Issues

The main issue in this case was whether a daughter has the right to inherit her father’s self-acquired property if he died before the Hindu Succession Act, 1956, was enacted, and if not, whether her paternal cousin’s son would have a preferential right to the property based on the doctrine of survivorship.

The other issues that were to be determined by the court included the following.

• If a daughter could inherit her father’s self-acquired property, what would be the order of succession after such a daughter’s death?

Judgement

This is an important decision about the sources of Hindu law, as the Hon’ble Supreme Court in this case noted and recognised various works and texts relating to traditional and customary Hindu law while determining the issues. The Hon’ble Apex Court emphasized the inheritance rights of women in this case. It clarified the law concerning inheritance, succession, the doctrine of survivorship, etc. Also, it highlighted the legal evolution of women’s rights to property under Hindu law from ancient works to modern enactments. 

Among the various ancient and customary rules of Hindu law, the court mainly noted the Mitakshara school of Hindu law, which recognised inheritance by succession for self-acquired property. It also stated the Bombay and Madras sub-schools of law, which recognised the inheritance rights of female heirs to a certain extent. Furthermore, the court also noted other relevant ancient texts and works, views, and opinions of ancient text writers about inheritance, succession, and women’s rights, including the opinions of Vijnyaneshwara.

Accordingly, after noting various ancient works and texts, the Hon’ble Apex Court observed that the right of a widow or daughter to inherit the self-acquired property is recognised by old customary law and various judicial precedents. It ruled that if any male Hindu who died intestate had self-acquired property or property obtained by coparcenary rights, it would devolve as per the law of inheritance and not as per the doctrine of survivorship. It further ruled that a daughter of such male Hindu dying intestate would be entitled to inherit such property in preference of other legal heirs.

The court noted that Marappa Gounder completely self-acquired the property and did not purchase it from joint family funds. Hence, it held that his daughter, Kuppayee Amma,l would inherit it as per inheritance and not by the doctrine of survivorship. 

The court also referred to Sections 14 and 15 of the Hindu Succession Act, 1956, and considered the legislative intent behind the law. It concluded that after Kuppayee Ammal died in 1967, the property would be distributed according to the Hindu Succession Act 1956 provisions. As a result, the daughters of Ramaswamy Gounder were entitled to inherit their respective property shares. Ultimately, the court ruled that all five children of Ramaswamy Gounder were entitled to a 1/5th share of the property.

Kattukandi Edathil Krishnan vs. Kattukandi Edathil Valsan (2022)

Facts of the case

The case of Kattukandi Edathil Krishnan vs. Kattukandi Edathil Valsan (2022) is an important decision, particularly regarding modern family dynamics and the evolving understanding of property rights. The case addresses the rights of a child born from a live-in relationship, an area that had not been clearly defined under traditional Hindu law..

In this case, the plaintiff, who was Damodaran’s son, filed a lawsuit in the trial court seeking a share of the property of his grandfather, K.A. Kanaran Vaidyar. The property had originally belonged to K.A. Kanaran Vaidyar, who had four sons: Damodaran, Achutan, Shekaran, and Narayanan.

However, there were no legal heirs for Shekaran and Narayanan, as Shekaran had passed away without marrying, and Narayanan had a daughter who also died unmarried. The main issue in the case was whether Damodaran’s son, the plaintiff, was entitled to a share of the property. Damodaran was married to Chiruthakutty, and their son was the one seeking his right to the inheritance.

The defendant, the son of Achutan, argued that the plaintiff was not a legal heir and, therefore, had no right to the property. This was because the plaintiff was born from a relationship that wasn’t legally recognized as marriage. While the plaintiff said his parents were in a long-term live-in relationship, the defendant denied this and insisted that they were never legally married, meaning the plaintiff wasn’t born out of wedlock according to the law.

The plaintiff sued the Trial Court, claiming half of the ancestral property. The court ruled in the plaintiff’s favor, stating that since Damodaran and Chiruthakutty had lived together for a long time, they could be considered effectively married. As a result, the court concluded that the plaintiff, born from this relationship, had the right to claim half of the property.

The defendants appealed the Trial Court’s decision to the Hon’ble High Court of Kerala. While the High Court acknowledged that the plaintiff was the son of Damodaran and Chiruthakutty, there was not enough evidence to prove that they were married. As a result, the High Court ruled that the plaintiff was an illegitimate child and did not have co-parcenary rights to the property. Therefore, it overturned the Trial Court’s decision and denied the plaintiff half of the ancestral property.

The plaintiff then appealed to the Supreme Court against the decision made by the High Court of Kerala.

Issues

• Whether the plaintiff born out of a marriage or not?
• Whether two individuals can be assumed to be married if they cohabited together for an extended period suggesting a relationship of husband and wife?
• Whether a child born out of such a relationship claim coparcenary rights over the ancestral property?

Judgement

The Supreme Court disagreed with the High Court’s decision and brought back the Trial Court’s ruling. The Court said that the defendants couldn’t prove that Damodaran and Chiruthakutty weren’t married, even though they had lived together for a long time. Since they couldn’t prove the plaintiff wasn’t born out of their relationship, the Court decided that the plaintiff was entitled to half of the ancestral property. 

The Court also pointed out that the evidence shown in the case proved that Damodaran and Chiruthakutty had lived together as husband and wife for a long time. Since there was no evidence to prove the opposite, the Court decided that the plaintiff was not an illegitimate son. He had the same rights as a legitimate son and was entitled to half of the property.

This decision is crucial because it sets a precedent and serves as a modern source of Hindu law by addressing issues related to live-in relationships. The case involved a relationship similar to a live-in arrangement, and the Court’s ruling helps adapt the law to reflect societal changes. It ensures that children born from such relationships are given their rightful inheritance and protection under the law.

The judicial decisions we discussed are just a few examples of the many essential rulings on Hindu law. These decisions often offer new interpretations of the law and are a key source of Hindu law today. They help improve and develop the law by pointing out problems or gaps in the current system. This is why judicial precedents are so valuable as a modern source of Hindu law.

Justice, Equity, and Good Conscience

Equity as a source of any law, and not just Hindu law, refers to a set of principles or rules or specific values that emerge in administering justice or adjudicating cases involving legal questions lacking any concrete law. In instances involving inadequacy or shortcomings of any law, the judges conferred with the duty to interpret the law decide the cases based on certain principles or rules founded on honesty, fairness, justness, and propriety. 

Such a set of principles is commonly referred to as equity, which serves as a source of law for adjudicating cases. Equity, Justice, and good conscience are applied and invoked to deal with aspects or matters not explicitly described and elucidated in the ancient works. Moreover, equity as a source of law is constantly evolving, with new additions being made to it or improvisation of the existing set of rules or principles being improvised according to changes in society. Hence, it qualifies as a modern source of Hindu law.

The concept of equity in Hindu law dates back to when Hindu jurists interpreted old texts, like the Smritis, and wrote commentaries or digests. These jurists gave new interpretations of the laws based on fairness and justice. For instance, when there was a conflict between two rules in the Smritis, the rule that was in favour of fairness, justice, and rationality essentially, the principles of equity would be applied or given priority.

Brihaspati believed that decisions should not be based only on religious texts or Shastras. He argued that if a decision doesn’t make sense or isn’t logical, it will lead to injustice. Kautilya also had a similar view. He said that if a religious or Dharma text conflicts with judicial reasoning, the judicial reasoning should take precedence. Yajnavalkya agreed, too, saying that if two texts contradict each other, fairness and equity should prevail over strict adherence to the law. 

Based on the views of these Hindu jurists, equity, justice, and good conscience play a significant role in shaping Hindu law. These principles help ensure that the law remains fair and just, especially when there’s a conflict or contradiction between legal texts.

The Supreme Court of India has also acknowledged justice, equity, and good conscience as a source of Hindu law. In the case of Gurunath vs. Kamlabai (1955), the court stated that when there’s no clear rule or principle of Hindu law to guide a decision, courts can rely on these principles. However, the court emphasized that any decision based on these principles must not contradict or contradict established Hindu law principles or doctrines.

The principles of justice, equity, and good conscience apply in situations where the smritis and commentaries do not provide clear guidance. These principles and rules, similar to those used in ancient cases for similar cases, are now considered a modern source of Hindu law. They can be applied separately or together to address legal matters not covered by traditional texts.

In the case of Jatindra Mohan Tagore vs. Ganendra Mohan Tagore (1872), the Privy Council applied principles from the law of gifts to the law of wills. The court said that when faced with a new situation, it’s the court’s job to make decisions based on established principles and by looking at how similar cases were handled in the past. This shows how fairness, justice, and good conscience can help solve new legal issues.

In the case of Kenchava Sanyellappa Hosmani vs. Girimalappa Channappa Somasagar (1924), the Bombay High Court dealt with the issue of whether a person who committed murder could inherit the property of their victim. Since there were no clear rules in Hindu law addressing this situation, the court used the principles of justice, equity, and good conscience to decide. The court ruled that the person who committed the murder should not be allowed to inherit the victim’s property. This shows how fairness and moral considerations can guide legal decisions without explicit law.

Conclusion

The sources of Hindu law are as diverse and numerous as the traditions and practices within the religion. These various sources have all played a role in shaping the law we have today. The law has also been updated through amendments to reflect changes in society. This evolving nature of Hindu law shows its adaptability and foundation in ancient traditions and modern needs. 

Although a few of the sources are referred to as of fundamental importance and are given preference over the other sources, the influence of other sources cannot be disregarded as each and every source has in one way or another irrespective of its extent influenced and paved the path for the development of the Hindu law. 

The coordination and consideration of the essence of the ancient and traditional works with the present-day jurisprudence and position of law without undermining the importance of each other is essential for the smooth development of law. Hence, the role of the judiciary is far more significant than the legislature in the development of the law. It is because the judiciary is entrusted with interpreting the laws made by the legislature. Courts can broaden the interpretation of these laws, ensuring they stay relevant and in tune with contemporary issues while preserving their core principles. This process helps Hindu law evolve to meet the changing needs of society.

Frequently Asked Questions (FAQs)

What are the ancient sources of Hindu law?

Srutis, Smritis, Digest and commentaries, and Customs are the four ancient sources of Hindu law.

What are the modern sources of Hindu law?

The modern sources of Hindu law include legislation, judicial precedents, justice, equity, and good conscience. 

What are the primary and fundamental sources of Hindu law?

Srutis are the primary and fundamental sources of Hindu law.

Which period is known as the golden age of Hindu law?

The period during which the composition of Smritis took place is regarded as the golden period of Hindu law.

What are the earliest sacred texts of Hindu law?

Vedas are the earliest sacred texts of Hindu law.

Which is the oldest and the most prominent Veda of Hindu law?

Rig Veda is the oldest Veda among all the Vedas. It is also the most prominent Veda.

What are the three main essential elements of a valid custom?

Antiquity (ancient), Certainty, and reasonableness are the three essential elements of Hindu law.

Which enactment enabled considering a daughter as a co-parcener in Hindu law?

The Hindu Succession (Amendment) Act, 2005, brought significant changes to Hindu law relating to inheritance and succession to ensure gender equality. It also gave daughters coparcenary rights under Hindu succession law.

What are the four major codified enactments of Hindu law?

The Hindu Marriage Act, 1955; the Hindu Minority and Guardianship Act, 1956; the Hindu Adoption and Maintenance Act, 1956; and the Hindu Succession Act, 1956 are the four important legislations that govern Hindu law in India.

Which case described the retrospective effect of the Hindu Succession (Amendment) Act, 2005?

The Hon’ble Apex Court, in Vineeta Sharma vs. Rakesh Sharma (2020), laid down the retrospective application of the Hindu Succession (Amendment) Act, 2005, overruling its decision rendered in Smt. Prakash vs. Phulwati (2015), where it was held otherwise.

References

• Hindu Law by R.K. Agarwal
• Hindu Law by Paras Diwan
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• https://www.law.cornell.edu/women-and-justice/resource/githa_hariharan_v_reserve_bank_of_india 
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