Meaning of Dharm in Hindu law
Hindu Law is a body of principal or rules called “Dharma”.
Dharma, according to Hindu text embraces everything in life according to it which include not only what is known as law in modern sense of the term, but law rule as of good and proper human conduct.
According to Hindu mythology it means “duty” the religious reference of the Dharma has different meaning just like the Buddhist believe that the word Dharma means only a “universal law” which is very much essential and the Jains and Sikhs believe that it is only religious part for the “victory of the truth”.
According to Hindu jurisprudence Dharma means the duty in many ways just like the sociological duty, legal duty, or spiritual duty, through this context we can say that it can be referred as the concept of “Justice”.
What are the sources of Hindu law?
Basically there are two sources of this Law one is Ancient and another is Modern law.
Ancient Source of Hindu Law notes
Ancient source of law of Hindu are as follows:-
- Shrutis
- Smritis
- Digests & Commentaries
- Custom
Shrutis Ancient source of Hindu Law
Shruti is the most important and for most source of Hindu. It contains the sacred word of the God which were revealed to sages.
These source is considered to be the most important and essential source of all so this are the sacred pure attends that has been enshrined in the Vedas and the Upanishad.
Smritis Ancient source of Hindu
Smriti is are considered as text which has been remembered and then interpreted by Rishi throughout the generation.
There is further classification of the term Smriti which are as follows:-
Dharma Sutra
It is a form of text which can we seen as prose.
- Author :- Gautam, Bandhyana, Apastamba.
Dharmashastra
It is in form of poetry.
- Authors :- Mannu, Yajnyavalkya, Nanada, Vishnu.
Commentaries and Digest
They have expanded the scope of Hindu law and played a very major role in developing the very concept of Hindu law.
Commentaries and Digest are record of custom contained in Smriti. They interpreted explained and modified the custom contain in smriti’s.
It help in the interpretation of the smriti’s, single interpretation of the Smriti is called as commentary while different interpretation of the smriti’s are known as digest.
Dayabhaga and Mitakshara are considered to be the two most important commentaries.
Customs
customs is the tradition that has been practice in society since ancient times
it is a type of practice that is under the continuous observation of the people and has been followed by the people the burden of the proof lies on the party who realise on custom to prove that the custom exist.
Section 3 of Hindu Marriage Act 1955
section 3 subclassi of Hindu Marriage Act 1995 define custom and usage it provides that custom and usage signify and roll which having been continuously and uniformaly observed for a long time has obtained the force of law.
Essential of Custom
- a custom must be continuous in practice
- it’s should not be vague or ambiguous.
- a customer have time antiquity
- there must be a complete observation of the custom
- it should be certain and clear
- a custom must not oppose the public policy which will affect the interest of the general public.
Modern source of Hindu Law
Legislation
the legislation is considered to be the most important source of Hindu law it has been stated that in order to meet the new condition of the society it become a necessity to codify Hindu law.
they have reformed altered and supplementary old Hindu law and have also tried to bring uniformity throughout the country in application and practice of Hindu law.
Major Legislation
- Indian succession at 1925
- Hindu womens right to Property Act 1937
- the special Marriage Act 1954
- The Hindu Marriage Act 1955
- The Hindu minority and Guardian ship Act 1956
- The Hindu Succession Act 1956
- The Hindu adoption and maintenance act 1956
judicial decision
Judicial decision are considered to be the most important ingredient of modern sources.
On every point of law there are large number of decisions which have interpreted various commentaries and Smritis.
The doctrine of precedent was established and it was applied in the cases resembling the same facts and circumstances of case are ready decided.
Justice equity and good conscience
Justice equity and good conscience is the basic rule of law.
This rule of law applies when an existing law does not apply or where there is conflict between two sources or between rules of Smriti and Commentaries.
In Sach a case the court decide the particular matter by applying its rationality and the concept of justice equity and good conscience.
This role is considered to be the fairest and reasonable option available to a person.
Case of equity and good conscience Hindu law
Gurunath v Kamlabai
The supreme court held that in the absence of any existing law the rule of justice, equity and good conscience was applied.
However such decision must not be inconsistent with any Doctrine or theory of Hindu law.