Origin & Sources of Hindu Law: Shruti, Smriti, Mitakshara-Dayabhaga Notes for Judiciary

Hindu law is one of the oldest legal systems in the world. As Mayne rightly noted, "it boasts the longest lineage of any known jurisprudential system and continues to remain robust." Although numerous significant changes have been made in the past half century through legislation, judicial precedents, and new customs, the fundamental principles still remain rooted in ancient Hindu law.

Origin

Hindu law was not initially the product of legislation nor is it purely customary law; rather, Hindu law is believed to be of divine origin. It is considered to have been revealed by the supreme God to the great sages who attained spiritual enlightenment through their Tapasya and Yog.

The belief is that certain individuals among us, our revered rishis, reached such spiritual heights that they were able to commune directly with God. It was during such a time that Hindu law was revealed to them, and through their wisdom, we received this divine law. From this belief arises the concept that Hindu law is a divine law.

Hindu Law as a branch of Dharma

In Hinduism, law is viewed as a branch of Dharma, which is defined as "a collection of duties that all humans must perform for their well-being." However, Dharma encompasses not just legal duties, but also moral, religious, and social responsibilities.

Dharma encompasses the entirety of religious, moral, social, and legal duties. From the perspective of their binding nature, Hindu jurisprudence does not distinguish between legal duties and moral or religious duties. It is mandated that all duties must be fulfilled. The texts of Hindu Law do not clearly separate legal rules from those of morality or religion; instead, law and morality are intertwined. This blending arises from the fact that the source of all legal, moral or religious duties was the same. Not only was the source unified, but the authority that governed both legal and moral or religious duties was also the same.

Fulfillment of Dharma necessary to attain Moksha

In Hindu philosophy, the ultimate goal of life is to achieve Moksha, or Salvation, to free oneself from the cycle of birth and death. While the body is mortal, the soul is immortal, and its journey continues until it reaches Moksha. Human life is seen as an opportunity to break free from this cycle by fulfilling one's Dharma. Based on this, the philosophy of karma was developed.

According to the philosophy of karma, unless salvation is achieved no one can live even for a moment without doing any karma. It is in the consequences of karma that one obtains pleasure and pain, prosperity and adversity.

Law, according to Hindus, facilitates the attainment of this ultimate objective of Salvation by regulating our karma.

Sources of Hindu Law

Ancient Sources

1. Shrutis

The Shrutis (meaning "what is heard") are considered the primary source of Hindu law, believed to be divine revelations heard by inspired sages. They include the four Vedas (Rigveda, Yajurveda, Samveda, and Atharvaveda), the six Vedangas (appendages to the Vedas), and the eighteen Upanishads, which focus on religious rites and paths to attaining Moksha (Salvation).

Vedas are a collection of ancient Indian scriptures that form the foundation of Hinduism.

Rigveda - The oldest and most important Veda, it is composed of hymns (called suktas) that praise various gods, natural forces, and cosmic principles.

Yajurveda - The Yajurveda primarily focuses on the rituals, prayers, and instructions for performing sacrifices (called yajnas) and other sacred ceremonies.

Samveda - The Samaveda consists primarily of melodies and chants used during Vedic sacrifices, which were sung by priests to invoke deities.

Atharvaveda - The Atharvaveda is distinct from the other Vedas as it contains hymns and rituals primarily focused on practical life, such as healing, protection, prosperity, and magic. It also addresses everyday concerns like family life, relationships, and overcoming obstacles.

Vedangas - The Vedangas are six disciplines that help in understanding and interpreting the Vedas. They are auxiliary texts that provide knowledge on how to read, chant, and perform rituals correctly.

Upanishads - The Upanishads are a collection of ancient Indian philosophical texts that form the concluding part of the Vedas. They primarily focus on spiritual knowledge, meditation, and the nature of reality. While the Vedas contain hymns, rituals, and prayers, the Upanishads explore the deeper meanings behind these practices, emphasizing the concepts of Brahman (the ultimate reality) and Atman (the individual soul or self).

2. Smritis

The term Smriti literally means what has been remembered. These Smritis are recollections of the human mind put in a consolidated form. According to some scholars they were edited by those seers/sages who attained spiritual heights upon whom the knowledge of Vedas descended. They have been, therefore, regarded as much an authoritative source of law as Shrutis. Their authors do not claim to be divinely inspired, but being perfectly familiar with the Vedas they profess to compile from memory the divine rules handed down by tradition.

They are either in the form of Dharmashastras (poetry style) or Dharmasutras (prose style)

Leading commentaries are as follows:

a) Manusmriti - It was compiled by Manu around 200 BC which deals with a complete code of human conduct including the duties of the King. The code is divided into twelve chapters. The eighth chapter describes eighteen titles of law which include both civil and criminal law prominent among which are law of inheritance, contract, property, master-servant relationship, defamation. The code has laid great emphasis on customs and usages as sources of law. Another important proposition contained in the code relates to the significance of danda as sanction behind the legal rules.

b) Yajnavalkya Smriti - Yajnavalkya Smriti was compiled in the first century A.D. Yajnavalkya is more liberal than Manu on several issues such as the women's right to inheritance and to hold property, punishment for various offences. Several features of commercial law have also been touched by him. Yajnavalkaya Smriti also contains the rules of procedure and evidence to be followed in civil disputes. It does not confine the justiciable causes to eighteen titles of dispute as enjoined by Manu but on the other hand it has laid down that whenever the right of a person is infringed or a wrong is done to him in contravention of Smriti or customary law, a judicial proceeding could be initiated.

c) Narada Smriti - It was compiled around 200 AD. The views propounded by Narada are progressive. He over-emphasised the importance of customs. A distinguishing feature of his Smriti is that it solely deals with law. Some of the topics which exclusively find place in the Smriti include ownership, property, gifts, partnership, inheritance. He recognises the right of separation and remarriage by a woman in certain circumstances. Besides the above, the Smriti characteristically deals with the law relating to pleading, procedure and evidence.

3. Commentaries and Digest

Over time, the development of Hindu law through various Smritis led to confusion and inconsistencies. To address this, modifications were needed to adapt the law to changing societal needs. Commentaries and Digests, based on the Smritis, played a key role in this process, becoming more significant than the Smritis themselves.

Commentaries are explanations and interpretations of any particular Smriti, for example Mitakshara is a commentary by Vijananeshwara on Yajnavalkya Smriti.

On the other hand, digest is compilations or summaries of legal rules and principles derived from various Smritis and other legal text, for example, Dayabhaga authored by Jimutvahana.

In Balwant Rao v Baji Rao (1921), Privy Council observed that Commentaries and Digest do not create new laws but edited and adapted existing legal rules to suit contemporary society.

Schools of Hindu Law

Lack of uniform interpretation of Smritis gave rise to Schools of Hindu Law. Followers of Mitakshara and Dayabhaga constitute the Mitakshara School and Dayabhaga School respectively.

Mitakshara School

The Mitakshara written by Vijnaneshwara is a running commentary on the Smriti of Yajnavalkya. It prevails in the whole of India except Bengal and Assam. Significant features of Mitakshara School are as follows :

• Acquisition of Rights by Birth: In the Mitakshara system, a person acquires a right to family property by birth. The family is considered a unit, and individual rights are not recognized until a person is born into the family.
• Family as a Unit: The family, rather than the individual, is the central unit in the Mitakshara system. Property is collectively owned by the family.
• Rights by Survivorship: Inheritance in the Mitakshara system follows the principle of survivorship, meaning that when a male member dies, the surviving male members inherit his share of the family property.
• Inheritance Based on Blood Relation: Inheritance rights are determined by the proximity of blood relation, with the closest blood relatives, particularly male members, being preferred in succession.

The Mitakshara School can again be divided into five sub schools:

1. The Benaras School of Hindu law
2. The Mithila School of Hindu law
3. The Bombay School of Hindu law
4. The Madras School of Hindu law
5. The Punjab School of Hindu law

These sub schools slightly differ on certain aspects of succession, adoption and Stridhan. However they acknowledge the Supreme authority of Mitakshara.

Dayabhaga School

The Dayabhaga authored by Jimutvahana is not a commentary on any particular Code, but professes to be a digest of all the codes. This school prevails in West Bengal as well as in Assam. It deals only with Partition and Inheritance. Significant features of Dayabhaga School are as follows:

• No Birthright for Sons: Unlike other systems, the Dayabhaga system does not grant the son an automatic interest in coparcenary property by birth. Additionally, a son cannot demand partition while the father is alive.
• Spiritual Benefit Principle: The right to inherit is based on the amount of spiritual benefit a person can confer by making offerings to the deceased's name, rather than the birthright principle.
• Succession: The property of the deceased coparcener passes to their heirs by succession, rather than by survivorship.
• Absolute Power of Disposal: Father has absolute power to dispose of his separate or ancestral property by sale, gift, or will during his lifetime.