Briefly explain the source of Hindu Law with special reference to 'Custom'

 Briefly explain the source of Hindu Law with special reference to 'Custom'

Source : By the term of source we mean, from where the Hindu Law came in existence. According to Manu "The Vedas, the Smriti, the approved usages and what ever is agreeable to one's conscience. The wise have declared to be the quadruple direct evidence of Dharam."

Hindu Law is the product of Shruti, Smriti and Puran's. It has divine origin. Brahma himself through his mouth revealed the Vedas : However, various sources of Hindu Law may be classified under the following two heads (Ancient Sources & Modern Sources) : 

Ancient Sources

• Shruti : Menas what was heard from the mouth of God. The four Vedas are the first in sequence :

1. Rigveda (The Praise of forces of Nature)
2. Yajurveda (Rituals)
3. Samveda (Prayers)
4. Athervaveda (Magic, spell and Incantations). 

The six Vedangas :

1. Art
2. Grammar
3. Couplet
4. Education
5. Astronomy
6. Reason.

It also contains :

1. Dharama Shastras
2. Justices
3. Purans which is 18 in numbers.
4. Mimansas.

Some of the Purana are as under

1. Shiv Puran
2. Vishnu Puran
3. Garur puran
4. Skand Puran
5. Durga Puran
6. Kalika Puran, etc

Shrutis are believed to be the ultimate source of law. They governed the Human Conduct. They are religious in character.

• Smriti : It means "what is remembered." It was handed down by Rishis (Sages) from generation to generation. Manu Smriti, Yagnavalkya and Narada Smriti are the oldest one.

In Shyam Sunder Prasad Singh v. State of Bihar (1980 SCC) it was opined that if there is difference of opinion among the Smritis, the court should follow the practices among the people. If there is a clear usage, it should be followed up.

In Smritis we find rules regarding marriage, succession and criminal law. The duties of the king, The rules of partition and Stridhan have been incorporated in it. According to it a maternal uncle can marry with the daughter of his sister and that is why this tradition is still present in many castes in India. Vasistha Smriti tells about marriage, adoption and it allowed remarriage of a widow whose marriage has not benn consummated. Hindu religion claims to have 100 Smritis but the available number reveals that the period of 800 BC to 200 BC was the period of Smritis. The Smritis are two kinds :

1. Prose style : were called Dharama Shastras as Gautam's Vasistha
2. Poetry Style : were called Dharama Shastras as Vishnu, Vyas Vasishtha. Smritis are in the form of Sutras also which were earlier in point of time compared to Dharama Shastra's.

• Commentaries and Digests : (Nibandhas) All the Smriti's did not agree on one point and it gave rise to commentaries. The Interpretation brought many commentaries. It brought modification, constant usages as far place, time and situation. It modified the original texts in order to suit them to local customs and conditions. The court also recognized then because these were based on usages "Clear proof of usages will outweigh the written text of Law." It helped in setting up of different schools of Hindu Law.

The period of commentaries is between 700 AD to 1700 AD. In case of Budha Singh v. Lalata Singh (AIR 1915) - the Mitakashra was considered as the main digest of Hindu Law based on Yagnavalkya Smriti written by Vigyaneshwar in 11th Century. He was a great legislator who lived in Kalyanpura during the reign of Vikramarka - a chalukya ruler in 11th Century.

• Purans : The Purans are also an old source of Hindu Law. Purans are called the fifth Vedas.

In Ganga Sahai v. Lekhraj (9 All. 253) it was said that the place of Purana is either between Shrutis and Smritis ir more probably after them. It is considered as supplement to the sculptures.

Modern Sources

• Judicial Decisions : The fifth source of Hindu Law is Judicial Decision. The decisions of the Privy Council, Supreme Court and different High Courts are binding upon Hindus. Different law reports have judgments on every topics and these are modified , supplemented and enlarged with the gap of time. Some people do not consider them as a source of law but call them the interpretation of Hindu Law by judges, while applying the concepts into practical problems.

Article 142 of the Constitution says "Law declared by Supreme Court shall be binding on all courts. " The rulling of the Supreme Court is binding and it is to be followed by other courts. The judges are making laws by interpretation them and in this respect they are called the source of law.

The pious obligation of the son was enumerated in the case of Brij Narayan v. Mangla Prasad (1923) are still applicable to all the sons. 

• Legislations : It is the main source of Hindu Law now. The Hindu Law commission appointed in 1941 recommend that old laws should be codified in gradual stages and most enactments which came in force were of 1955, 1956. Indian Parliament passed four major enactments which made vital and dynamic changes in the law of marriage, succession, adoption, guardianship and maintenance. 

The process of legislation is a continuous one. In 1976, amendment of Marriage Laws (Amendment) Act, 1976 through the radical changes have been brought in Hindu Marriage Act. Recently, the Hindu Succession (Amendment) Act, 2005 has changed the coparcenary concept altogether.

Under Hindu Law the following Acts were enacted :

• The Caste Disabilities Removal Act (Freedom of Religion Act), 1850 : The Act provided that no right or property of a Hindu can be forfeited, nor his right of inheritance can be cancelled by reason of his renouncing his religion.

• The Hindu Widows Remarriage Act, 1856 : It legalized the remarriage of widows and makes legitimate the issue of such marriages.

• The Indian Majority Act, 1875 : The Act made 18 years as the age of majority in the matters of marriage, divorce and adoption.

• The Transfer of Property Act, 1882 : It provided for the appointment of guardian for the welfare of minor 

• The special Marriage (Amendment) Act, 1923 : Permits a Hindu to Contract a valid marriage with a person belonging to any caste or with a person professing the Jain, Sikh or Buddhist religion.

• The Indian Succession Act, 1925 : Made provisions regarding will. It is applicable for all Indians.

• The Hindu Inheritance (Removal of Disabilities) Act, 1928 : The act removes certain disabilities which excluded a Hindu from inheritance or a share on Partition.

• The Child Marriage Restraint Act, 1929 : Brought restriction on child marriage. It penalizes marriage of girls below 14 and boys below 18 years of age.

• The Hindu Women's Right to Property Act, 1937 : Gave rights of inheritance to the widow of the coparcener.

• The Hindu Marriages Disabilities Removal Act, 1946 : The Act removed the Disabilities in respect of marriage between persons belonging to the same Gotra and different inter caste.

• The Indian Succession Act, 1925 : It modified the Hindu Law relating to Wills.

• The Hindu Marriage Disabilities Removal Act, 1946 : It has now been repealed by Hindu Marriage Act, 1955.

In addition to the above many statutes like Religious Endowments Act, Evidence Act, I.P.C. made remarkable changes among Hindus. The Dowry Prohibited Act, 1961-made dowry a punishable offence to save it as social ill.

Finally the following Acts become the governing laws of Hindu's :

• The Hindu Marriage Act, 1955.

• The Hindu Succession Act, 1956.

• The Hindu Minority and Guardianship Act, 1956.

• The Hindu Adoptions and Maintenance Act, 1956.

• The Special Marriage Act, 1954.

• The Family Courts Act, 1984.

These Acts governed the personal activities of Hindu in the matter of marriage, divorce, Succession, adoption, maintenance, etc. In matter of crimes - IPC, in matter of contracts, the Indian Contact Act and in the matter of civil cases the CPC 1908 and Evidence Act, 1872 governed the Hindu's as Indians only.

• Equity, Justice and Good Conscience : The charter of 1773 empowered the Supreme Court to follow the concept of equity, justice and good conscience in case of no direct solution is available through any other sources. For example there was no provision of transfer of property through will prior to Hindu Will Act, 1870 yet in the case of Jitendra Mohan Tagore v. Gyanendra Mohan Tagore (1872) allowed it on the ground of equity by applying it.

Equity Menas fairness, equality, and as per voice of the soul. In Gurunath v. Kamla Bai (AIR 1955) it was said by Supreme Court that in the absence of any clear shastric text, the court has the Authority to decide cases on the principles of justice, equity and good conscience.

The doctrine of factum valet is applied in India on the ground of justice, equity and good conscience. It means that an act done (valid and binding) can not be undone by hundred texts. But this doctrine applies in marriage and adaptation cases only.

• Custom and Usages : 

There are three divisions of customs generally recognized by Hindu Law. They are :

1. Local Custom 
2. Class Custom and;
3. Family Custom.

(1) Local Custom : Such customs belong to some particular locality or district and they are binding on the inhabitants of such place.

(2) Class Custom : Such customs are if a caste or of a sect or of the followers of a particular profession or occupation, such as agriculture, trade, mechanical art and the like.

(3) Family Custom : Such customs relate to a particular family, particularly concerning succession to an impartible Raj or succession to Maths or religious foundations.

Essentials of Custom :

In order that a custom be valid, it must be -

1. Ancient 
2. Invariable and continuous 
3. Established by clear and unambiguous evidence. 
4. Reasonable
5. It must not be opposed to morality or public policy and
6. It must not be forbidden by any express enactment of the legislature.

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1. Ancient : A custom should be very old. It must be ancient. A custom must be of long standing, which would indicate that by common consent, it has been accepted as the law governing a particular locality, class or family. If need not be of immemorial antiquity, but a long usage is absolutely necessary.
2. Invariable and continuous : Continuity is as essential to the validity of a custom as antiquity. In the case of a widely spread local custom, want of continuity would be an evidence to the fact that it never had a legal existence.
3. Clear and unambiguous evidence : The evidence of custom must be clear and unambiguous. A custom may be proved either by actual instances or by general evidence of the members of the tribe or family who would naturally be cognizant of its existence.
4. It must also be reasonable : This means that it should be in accordance with the rules of justice, equity and good conscience.
5. It must not be opposed to morality or public policy : Although the standards of morality vary from time to time, from place to place and from community to community, the courts take upon themselves and responsibility of determining what is moral in the facts and circumstances of the particular case. If a custom is immoral or opposed to public policy, it will naturally not be enforced.
6. It must not be opposed to any law : In order that the custom be a valid one, it is also essential that it must not be forbidden by any act of the legislature. If it is so forbidden, the courts will not recognise such a custom, although it may satisfy all the other requirements of a valid custom. Thus, the following are example of custom, which the courts have refused to recognise :

• A custom permitting a husband to dissolve his marriage without the consent of the wife by paying a fixed sum of money.
• A custom in South India, according to which a man could marry his daughter's daughter.

According to based on the above mentioned content, we can say custom is the paramount source of Hindu Law. The custom will override the text. Any custom can be come a law only when it completes all the requirements of a valid customs. Like :

• Saptapadi is a custom which is followed in all the marriages among Hindus.
• The 'Gurwat' custom is prevailing among the Agarwal Community of the chhattisgarh region of the state of Madhya Pradesh.
• Custom of illatom adoption i.e. adoption of son-in-law is prevalent among the Reddi and Kamma castes in Madras.

The custom should be now old, is a matter of facts. The ordinary rule of the custom is that it should be time immemorial. Nobody be able to say that he knows the origin of the custom. It should be 100 years old. Prof. Daret is of this view that a custom should atleast 40 years old.

As discussed above, customs undoubtedly played a very important role as one material sources of ancient Hindu Law. And also sometime we can say that custom can override the written text of law.

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