We should know about the Hindu Law because it is one of the oldest and most ancient pedigrees of any system of jurisprudence. It holds many rules and principles which are still established in society. Bangladesh is known as the third largest hindu populated country and also Bangladesh was found as a secular state when the constitution was made. Though Islam was made the state religion it still respects and values the other religions and Hindus are the second majority of people in Bangladesh. So it is obvious that when the conflicting issues are arising in the court a huge portion will be a part of Hindu Law, so we should have a clear idea about Hindu Law.
Synopsis of Hindu Law
Hindu law comes from the very earliest period. It has gone through many phases and now it has evolved and prospered much. As we know the history of hindu law comes from a very early period, it is known as the most ancient lineage of any system of jurisprudence. Law was understood as a branch of Dharma. Its ancient structure is the work of the Smritis, which is the institute and it enunciates the rules of Dharmas. Dharma means an expression which assembles duties and obligations, religious, moral, social and legal aspects. The sources of Hindu laws can be divided into two categories namely:- Traditional sources and Modern sources, and these two divisions are categorised into more groups. To begin with, there are 4 traditional sources of Hindu law and these are; Shruti ( Vedas), Smrities, Digest and Commentaries, Customs.
It means Vedas which is the original root and source of Dharma. It’s a belief that this law was the very word of God. Shruti literally means being heard and it is also accepted as the original utterances of the great power. It is to be believed that it’s a supreme source of Hindu law and language of God. Vedas are divided into 4 types: The Rig Veda, The Yajur Veda, The Sama Veda and The Atharva Veda).
In literal meaning it means recollection. The Smrities were expressed in the words of the rishis or sages who saw or received the revelations and proclaimed their recollections. The recollections are handed by the sages or rishis from generation to generation in order to preserve. It is known that there are many writers of Smrities but it was impossible to identify the exact number of writers. There are two types of Smrities: Dharamasutras and Dharamshashtras, the main difference between these two is Dharamasutras are written in the form of story and Dharamshashtras are written in the form of shlokas (poetry).
Digest and Commentaries
It emerged due to the conflicts that were arising because difference of opinion was arising and all the smrities were not according to one another and this led to various interpretations. Digests were mainly in written form. Even the two principal schools of Hindu Law emerged from this. The main two Hindu Law schools are: Dayabagha and Mitakshara. Dayabhaga is mainly from the Digests and Mitakshara is from the commentaries. It is more of a compilation of previous laws into a more developed form for the betterment of the society.
Customs are generally known as some practices which are followed or obeyed by people for a considerable amount of time. It is to be considered that these practices are being followed by people for a considerable period. It is also a principal source of Hindu Law and it is superior to written law.
Now we are going to talk about the modern sources of Hindu Law and these are:
- Equity Justice
- Legislation and
Equity in simple terms means just being fair. There are some situations that arise in court and it cannot be resolved by the established laws or previous ones, on rare circumstances like this one the equity plays a fair part it simply plays fair in these types of circumstances. The decision should be based on good conscience so that any injustice is not occurring to the matter to be solved.
An act which is passed through parliament is basically legislation. It plays one of the important roles in the formation of Hindu Law. It provides a base and authority to the laws. Hindu Marriage Act, Hindu Succession Act, Hindu Adoption Act etc. comes under this branch of legislation.
It is to be known as a source of Hindu Law from two perspectives. Firstly, the Hindu Law represents the important rules and principles that represent in the case laws and secondly, from this source the judicial interpretation, doctrine, principles and rules are introduced to the body of Hindu Law. For the aforementioned things the precedents are the sources of authority.
As we know there are two principal schools of Hindu Law:- Mitakshara and Dayabhaga.
Mitakshara: It is established all over India, except Bengal. It is based on the commentary on the institutions of Yajnavalkya. It is also divided into 5 categories and these are: a) The Benaras School, b) The Mithila School, c) The Dravida or Madras school and, d) The Bombay or Maharashtra School.
Dayabhaga: It is mainly established in Bengal and this is also established in Bangladesh. It is not based on commentary. It was written by Jimutavahana. One of the major differences between Mitakshara and Dayabhaga is the law of Inheritance. The right to property rises from the birth of the claimant which is when a son is born he becomes the co-owner of the ancestral property but in the school of Dayabhaga the right to property is born when there is death of the last owner of the property, during father’s lifetime the son has no right over the property.
The Hindu Law is applicable to all the Hindus of Bangladesh and India but other than that it is also applicable to the persons who are followers of Buddhism, Jainism and Sikhism. Hindu Law covers the matters of inheritance, marriage, guardianship, will, gift, partition, religious institutions of hindus.
The four major legislations were passed around the time 1955-1956. From that time the modern Hindu Law was established in a broader way to the society. The major four acts that are followed now are as follows:
- The Hindu Marriage Act, 1955
- The Hindu Succession Act, 1956
- The Hindu Minority and Guardianship Act, 1956
- The Hindu Adoptions and Maintenance Act, 1956
To conclude, we can have a short idea about why we should know about Hindu Law and why it is necessary to know about the legislation relating to Hindu Law. From the above synopsis we cannot have a broad idea but we can surely have a general idea about Hindu Law and why we should read it.
- Jatin Garg,VIPS, Sources of Hindu Law (2020)
- Utkarsh Shubham, Who is a Hindu? State the categories of persons to whom Hindu Law Applies (2019)