Introduction
“Hindu law has the oldest pedigree of any known system of jurisprudence, and even now it shows no sign of decrepitude.” — Henry Mayne.
The phrase “source of law” has several connotations:
- It may be the authority which issues rules of conduct recognized by courts as binding — in this context, it means the maker of law.
- It may refer to the social conditions that inspire the making of law — in this context, it means the cause of law.
- It may also literally mean the material from which the rules and laws are known — in this sense, it means the evidence of law.
In Jurisprudence, the expression ‘source of law’ is accepted in this third sense — as the evidence of law.
Importance of Studying Sources of Law
Vijnaneshwar, the commentator on the Yajnavalkya Smriti and founder of the Mitakshara School, called it Jnapak Hetu, meaning “the means of knowing law.”
It is crucial to study the sources of law because in every personal legal system, only those rules that have a place in its sources are considered law. A rule not laid down or not recognized in the sources is not a rule within that system.
Origin and Meaning of Hindu Law
The word ‘Hindu’ first appeared in the Old Persian language, derived from the Sanskrit word Sindhu, which referred to the Indus River in the north-western part of the Indian subcontinent. Thus, a Hindu is an adherent of Hinduism.
Hindu law is a set of personal laws governing the social conditions of Hindus — including matters such as:
- Marriage and divorce
- Adoption
- Inheritance
- Minority and guardianship
- Family matters and other social issues
Interestingly, it is not only Hindus who are governed by Hindu law. Several other communities and religious denominations fall under its dominion, including:
| Communities Governed by Hindu Law |
|---|
| Jains |
| Buddhists |
| Sikhs |
| Brahmo-Samajists |
| Prarthana-Samajists |
| Virashaivas and Lingayats |
| Santhals of Chhota Nagpur |
Definition by Sir Dinshah F. Mulla
In Sir Dinshah F. Mulla’s “Principles of Hindu Law”, the learned editor defines Hindu law as follows:
“Wherever the laws of India admit operation of a personal law, the rights and obligations of a Hindu are determined by Hindu law, i.e., his traditional law, sometimes called the law of his religion, subject to the exception that any part of that law may be modified or abrogated by statute.”
Law as understood by Hindus is a branch of dharma.
Nature and Scope
The scope of this article is restricted to exploring the sources of Hindu law, along with a critique of their definitions and general implications.
Classification of Sources of Hindu Law
The sources of Hindu law can be classified under the following two broad heads:
I. Ancient Sources
These include:
- Shruti
- Smriti
- Digests and Commentaries
- Custom
II. Modern Sources
These include:
- Justice, Equity, and Good Conscience
- Precedent
- Legislation
Ancient Sources
Shruti
It literally means “that which has been heard.” The word is derived from the root “shru,” meaning “to hear.” In theory, it is the primary and paramount source of Hindu law and is believed to be the language of divine revelation through the sages.
The synonym of Shruti is Veda, derived from the root “vid,” meaning “to know.” The term Veda is based on the tradition that they are the repository of all knowledge. There are four Vedas:
- Rig Veda: Contains hymns in Sanskrit to be recited by the chief priest.
- Yajur Veda: Contains formulas to be recited by the officiating priest.
- Sama Veda: Contains verses to be chanted by seers.
- Atharva Veda: Contains spells, incantations, stories, predictions, charms, and speculative hymns.
Each Veda has three parts:
| Part | Description |
|---|---|
| Samhita | Consists mainly of hymns. |
| Brahmin | Explains duties and means of performing them. |
| Upanishad | Contains the essence of these duties. |
The Shrutis thus include the Vedas along with all their components.
Smritis
The word Smriti is derived from the root “smri,” meaning “to remember.” Traditionally, Smritis contain portions of the Shrutis which sages forgot in their original form and rewrote in their own language from memory. Thus, while Shruti is divine, Smriti is human work.
There are two kinds of Smritis:
- Dharmasutras: Written in prose, in short maxims (Sutras).
- Dharmashastras: Written in verse (Shlokas).
Notable Smriti writers include Manu, Atri, Vishnu, Harita, Yajnavalkya, Yama, Katyayana, Brihaspati, Parashar, Vyas, Shankh, Daksha, Gautama, Shatatapa, and Vasishtha.
The rules in Smritis are categorized as:
- Achar: Relating to morality.
- Vyavahar: Relating to procedure and justice administration.
- Prayaschit: Relating to penalties for wrongdoing.
Digests and Commentaries
After the Shrutis came the era of commentators and digests, spanning from the 7th century to 1800 A.D. Early commentaries were written on Smritis, while later digests synthesized and reconciled contradictions among them.
Different schools of Hindu law evolved due to various commentaries. Although the original sources were the same, differences arose as people adhered to different schools. The two major schools are:
- Dayabhaga School: Based on Jimutvahana’s commentaries.
- Mitakshara School: Based on Vijnaneswar’s commentary on Yajnavalkya Smriti.
Custom
Custom is regarded as the third source of Hindu law. From the earliest period, custom (“achara”) has been considered the highest dharma. As defined by the Judicial Committee, custom signifies a rule that, in a particular family, class, or district, has through long usage obtained the force of law.
Custom is a principal source and stands next to Shruti and Smriti, but in case of conflict, custom prevails over Smriti. For a custom to be valid, it must meet the following requirements:
- The custom must be ancient and accepted by the community as a governing rule.
- The custom must be certain, free from ambiguity, and not based on technicalities.
- The custom must be reasonable, not immoral, and not against public policy.
- The custom must be continuously and uniformly followed for a long time.
Indian courts recognize three types of customs:
| Type | Description | Example |
|---|---|---|
| Local Custom | Prevalent in a particular region or locality. | Customs specific to certain regions in India. |
| Class Custom | Followed by a particular class or community. | Among certain Vaishya classes, a wife may remarry if abandoned by her husband. |
| Family Custom | Binding within specific families. | Eldest male member inherits the estate in ancient Indian families. |
Modern Sources
Justice, Equity, and Good Conscience
Sometimes a case arises where no existing law applies. Courts, however, must still render justice. In such instances, they rely on principles of justice, equity, and good conscience — also known as natural law.
This principle has been recognized since the 18th century, during British rule, as a guiding source of law in the absence of a specific rule.
Legislation
Legislation refers to Acts of Parliament that play a major role in shaping Hindu law. After India’s independence, key aspects of Hindu law were codified through the following Acts:
- The Hindu Marriage Act, 1955
- The Hindu Adoptions and Maintenance Act, 1956
- The Hindu Succession Act, 1956
- The Hindu Minority and Guardianship Act, 1956
Once codified, the provisions of these Acts are final and override prior laws or customs unless expressly saved. For matters not covered by codified law, traditional texts still apply.
Legal updates (as of 8 November 2025)
Below are recent judicial and legislative developments relevant to the sources and application of Hindu law. These updates should be read alongside the article’s main discussion of modern sources such as legislation, precedent, equity, and custom.
- Supreme Court clarification on “irretrievable breakdown” and Article 142: The Supreme Court has in recent rulings clarified that while irretrievable breakdown of marriage is not an explicit ground under the Hindu Marriage Act, 1955, the Court — in rare cases and exercising its equitable powers — has recognised that a marriage beyond repair may justify dissolution in the exceptional exercise of its powers (including consideration under Article 142 in suitable cases). This development affects how family courts and higher courts view equitable relief in marital disputes. :contentReference[oaicite:0]{index=0}
- Daughters’ coparcenary rights affirmed in subsequent judgments: The jurisprudence consolidating daughters’ coparcenary rights (post the Hindu Succession (Amendment) Act, 2005) has been further clarified by recent Supreme Court decisions confirming that daughters hold coparcenary rights by birth and related interpretations on succession and ancestral property. Practitioners should note these rulings when discussing succession entries and interpretation of Section 6. :contentReference[oaicite:1]{index=1}
- Family law case law developments in 2024–2025: High Courts and the Supreme Court issued a string of family-law decisions in 2024–2025 on issues such as interim maintenance, privacy in matrimonial disputes, guardianship, and the weight afforded to recorded conversations in divorce/maintenance proceedings — making these areas dynamic for practitioners and scholars. (See consolidated family-law roundups for 2025.) :contentReference[oaicite:2]{index=2}
- High Court clarifications on the timing of remarriage after divorce: Recent High Court decisions have clarified that a second marriage entered on the same day as a divorce decree is not automatically void; courts examine whether the first decree is challenged or appealed and other facts of the case before declaring the later marriage invalid. This practical rule has immediate effect on matrimonial practice and drafting. :contentReference[oaicite:3]{index=3}
- Application to custom & tribal contexts: Recent Supreme Court judgments continue to emphasise that where Hindu law does not apply, courts must examine proof of custom (and statutory exceptions) rather than assume application of personal law — an important point when dealing with tribal or local practices. :contentReference[oaicite:4]{index=4}
Editorial note: You may either (a) keep this section as a dated “updates” box that you refresh periodically, or (b) incorporate the short bullets into the “Modern Sources” section as factual, dated amendments — I recommend keeping a dated update box for transparency.
Precedents
With British rule came the establishment of a judicial hierarchy and the doctrine of precedent — the principle of deciding similar cases similarly. Decisions of the Privy Council were binding on lower courts unless modified by the Supreme Court, whose rulings are binding on all subordinate courts in India.
A Critique on the Sources of Hindu Law
Undefined Term ‘Hindu’
It is significant to note that the term ‘Hindu’ is not defined anywhere in terms of religion or in any statute or judicial decisions. For the purpose of determining to whom Hindu Law applies, it is necessary to know who is a Hindu and none of the sources expressly state so. At most from statutes, we can get a negative definition of a Hindu which states that Hindu law shall apply to those who are not Muslim, Christian, Parsi, Jew, etc. and who are not governed by any other law.
Divine Origin Theory and Its Critique
Hindu Law is considered to be divine law as it is strongly believed that the sages had attained some spiritual dominion and they could communicate directly with God from whom we get the divine law. But this is only an assumption and no concrete proof for the same is shown that the sages could communicate with God (whose very existence is challenged by atheists). Due to this, many communities are also suffering from the misapprehension or delusion that their forefathers and messiahs had revelations from God.
Justice A.M. Bhattacharjee strongly states that according to him he cannot think that “even a staunch believer in any divine existence, transcendent or immanent, can believe in the ‘divine origin’ of Hindu law, unless he has a motive behind such profession of belief or has not read the Smritis or is ready to believe anything and everything with slavish infidelity.”
Origin of Hindu Law
Views of Justice Markandey Katju
According to Justice Markandey Katju, Hindu law does not originate from the Vedas (also called Shruti). He vehemently asserts that there are many who propound that Hindu law originated from the Shrutis but this is a fiction and in fact Hindu law originated from the Smriti books which contained writings from Sanskrit scholars in ancient time who had specialized in law.
Shruti and Smriti
The Shrutis hardly consist of any law and the writings ordained in the Smriti do not make any clear-cut distinction between rules of law and rules of morality or religion. In most of the manuscripts, the ethical, moral and legal principles are woven into one. It is perhaps for this reason that according to Hindu tradition, law did not mean only in the Austinian sense of jurisprudence and is objectionable to it; and the word used in place of ‘law’ was the Sanskrit word ‘dharma’ which connotes religion as well as duty.
Dharmasutras and Manusmriti
Although Dharmasutras dealt with law, they did not provide an anthology of law dealing with all the branches of law. The Manusmriti supplied a much needed legal exposition which could be a compendium of law. But according to Kane, “It is almost impossible to say who composed the Manusmriti.” The very existence of Manu is regarded to be a myth by many and he is termed as a mythological character.
Authenticity of the Smritis
- The word Smriti itself means that which is remembered.
- The validity or proof of the existing Smritis could be challenged.
- It cannot be said for certainty that what the sages remembered was actually what was propounded.
Criticism of Hindu Law
Hindu law has generally been critiqued on the grounds that the Smritis and other customs were generally extremely orthodox and against the favours of women. Hindu society thus has always been a patriarchal society and women have always received subdued importance over men. Some also disapprove of the notions of caste-based system created by ancient Hindu law from which emerged the ill-perceived practices of untouchability, etc.
Interpretation and Schools of Hindu Law
The Smritis are admitted to possess independent authority but while their authority is beyond dispute, their meanings are open to various interpretations and has been and is the subject of much dispute. Till date, no one can say for sure the exact amount of Smritis which exist under Hindu law. It is due to the abovementioned problems that the digest and commentaries were established and various schools of Hindu law started to give birth.
Modern Sources of Hindu Law and Judicial Critique
The modern sources of Hindu law such as Justice, equity and good conscience have been critiqued on the grounds that it paves the way for personal opinions and beliefs of judges to be made into law. We have seen catena of cases where the decisions of the Court have been criticised for want of proper reasoning. This also signifies the incompleteness of the laws which exist.
Case Analysis: Krishna Singh v. Mathura Ahir
| Aspect | High Court (Allahabad) | Supreme Court |
|---|---|---|
| Ban on Sudras | The discriminatory ban imposed on the Sudras by the Smritis stands abrogated as it contravenes the Fundamental Rights guaranteed by the Constitution. | Part III of the Constitution does not touch upon the personal laws of the parties. In applying the personal laws of the parties one cannot introduce his own concepts of modern times but should enforce the law as derived from recognised and authoritative sources of Hindu law, except where such law is altered by any usage or custom or is modified or abrogated by statute. |
It can be submitted with ease that the above view is contrary to all Constitutional theories and is expressly in contradiction with Article 13. It is shocking to note that this judgment is yet to be over-ruled in express terms.
Key Cases Referenced
| Case | Year / Court | Key Holding |
|---|---|---|
| Bishundeo v. Seogani Rai | AIR 1951 SC 280 | Reference to textbook rules; limits on textbooks as primary sources |
| Krishna Singh v. Mathura Ahir | (1981) 3 SCC 689 | Debate over application of Fundamental Rights to personal law — ban on Sudras abrogated |
| Saraswathi Ambal v. Jagadambal | AIR 1953 SC 201 | Interpretation affecting personal law application |
Reforms and Legislation
Since the aegis of time, Hindu law has been reformed and modified to some extent through legislations but these reforms have been half-hearted and fragmentary. The problem with fragmentary reforms is that though reforms were made to change some aspects, their implications on other aspects were over-looked.
Example: The Hindu Women’s Right to Property Act, 1937, was passed with a view to granting property rights to women but its repercussions on the law of joint family was over-looked. The result was that fragmentary reforms through legislations solved some problems but resulted in others.
Role of Textbooks and Misconceptions
Many people make the mistake of considering various text books written by erudite scholars as sources of Hindu law. This is because the Courts have decided many cases relying on these text books and quoted them for reference. For example, Mulla’s Hindu Law has been quoted by many judges. In Bishundeo v. Seogani Rai, Justice Bose giving the majority judgment stated that “The rule laid down in Mulla’s book is expressly stated to be in cases where the position is not effected by a decree of a competent Court.” The same has been the case with many other text books. It should be made clear that text books are not sources of Hindu law and the authors have no authority to lay down the law.
Conclusion
It has been seen that Hindu law has been critiqued for its orthodoxy, patriarchal character and does not bear a very modern outlook of society. There are many areas where the Hindu law needs to upgrade itself, for example, the irretrievable breakdown theory as a valid ground for divorce is still not recognised under the Hindu Marriage Act, 1955, and even the Supreme Court have expressed their concern on this.
The most valid concern is that the very definition of a ‘Hindu’ is still not given in any of the sources. Statutes give only a negative definition which does not suffice the test of time. The very proponent that Hindu law is divine law has been challenged by scholars and atheists.
There are many Smritis which are yet to be found according to Historians and many conflicts of opinions and interpretations have arisen for the existing ones, thus creating a window of ambiguity under Hindu law. There are also several areas where Hindu law is silent.
Most of the ancient sources of Hindu law is written in Sanskrit and it is well known that in the present times there is a dearth of Sanskrit scholars. There is hardly any importance left of the ancient sources since the time the modern sources have emerged and been followed.
It can be said that proper codification of Hindu law without room for ambiguity is the need of the hour. It can be said that where the present sources of Hindu law are uninviting the Legislature could look into sources and customs of other religions and incorporate them into Hindu law if it caters to the need of the society and meets the test of time.
Bibliography
Primary Sources
- Constitution of India.
- Hindu Women’s Right to Property Act, 1937. (Repealed)
- The Hindu Adoptions and Maintenance Act, 1956.
- The Hindu Marriage Act, 1955.
- The Hindu Minority and Guardianship Act, 1956.
- The Hindu Succession Act, 1956.
Cases
- Bishundeo v. Seogani Rai, AIR 1951 SC 280.
- Harprasad v. Sheo Dayal, (1876) 3 IA 259.
- Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689.
- Pudiava v. Pavanasa, ILR (1922) 45 Mad 949 (FB).
- Saraswathi Ambal v. Jagadambal, AIR 1953 SC 201.
- Siromani v. Hem Kumar, AIR 1968 SC 1299.
- Subhani v. Nawab, AIR 1941 PC 21.
Secondary Sources
Books & Encyclopedias
- Bhattacharjee, A.M., Hindu Law and the Constitution, 2nd ed., Eastern Law House, 2005.
- Derrett, John D.M., Critique of Modern Hindu Law, 1st ed., Allahabad Law Agency, 1970.
- Diwan, P., Modern Hindu Law, 17th Ed., Allahabad Law Agency, 2006.
- Gandhi, B.M., Hindu Law, 2nd Ed., Eastern Book Company, 2003.
- Gaur, A., Commentaries on Hindu Law, 1st ed., Dwivedi and Company, 2007.
- Hindus, Encyclopaedia of Hinduism, Ed. Kapoor, S., 1st Ed., Cosmo Publications, 2000.
- Mayne’s Treatise on Hindu Law and Usage, ed. Ragannath, J., 15th Ed., Bharat Law House, 2003.
- Mitra on Hindu Law, 2nd Ed., Orient Publishing Company, 2006.
- Mulla, Principle of Hindu Law, Vol-I, ed. Desai, S.A., 19th Ed., Lexis Nexis Butterworths, 2005.
- Nagpal, R.C., Modern Hindu Law, 2nd Ed., Eastern Book Company, 2008.
- Nandan, J., Hindu Law – Marriage and Divorce, 1st Ed., University Book Agency, 1989.
- Sen, P., Hindu Jurisprudence, 2nd Ed., Eastern Law House, 1984.
- Sharma, Dr. B.K., Hindu Law, 1st Ed., Central Law Publishers, 2007.
Articles
- Hon’ble Katju, M. J., Ancient Indian Jurisprudence vis-à-vis Modern Indian Jurisprudence, AIR 2008 Journal 65.
- Hon’ble Katju, M. J., The Mimansa Principles of Interpretation, AIR 2002 Journal 119.
- Hon’ble Katju, M. J., The Importance of Mitakshara in the 21st Century, AIR 2005 Journal 215.
Online Sources
- http://indianhindulaw.googlepages.com/sourcesofhindulaw — last visited on 23/08/2009 at 7:05 P.M.
- http://en.wikipedia.org/wiki/Hindu_law — last visited on 23/08/2009 at 6:50 P.M.
Notes and References
- Nagpal, R.C., Modern Hindu Law, 2nd Ed. (2008) at p.22.
- Mit. on Yaj., I: 7.
- Hindus, Encyclopaedia of Hinduism, Ed. Kapoor, S. 1st Ed. (2000) at p.828.
- Nandan, J., Hindu Law – Marriage and Divorce, 1st Ed. (1989) at p.1.
- Mulla, Principle of Hindu Law, Vol-I, ed. Desai, S.A, 19th Ed. (2005) at p.1.
- One’s righteous duty or any virtuous path.
- Pudiava v. Pavanasa, ILR (1922) 45 Mad 949 (FB).
- Shrutisto vedo vijneyo dharmashastram tu vai Smritih, Manusmriti-II, 10.
- Manu II, 12; Yajn. I, 7; Medhatithi on Manu II, 6 as cited in Mayne’s Treatise on Hindu Law and Usage, ed. Ragannath, J. 15th Ed. (2003) at p.15.
- Yajn., I, 4-5, as cited in Supra n.1, p.31.
- Sharma, Dr.B.K., Hindu Law, 1st Ed. (2007) at p.6.
- Mitra on Hindu Law, 2nd Ed. (2006) at p.28.
- Supra n.9 at p.45.
- Manu Smriti: I: 108-110 as cited in Gandhi, B.M., Hindu Law, 2nd Ed. (2003) at p.19.
- Harprasad v. Sheo Dayal, (1876) 3 IA 259; Siromani v. Hem Kumar, AIR 1968 SC 1299.
- Subhani v. Nawab, AIR 1941 PC 21.
- Supra n.12 at p.25.
- Saraswathi Ambal v. Jagadambal, AIR 1953 SC 201.
- Ibid.
- Supra n.1, at p.53.
- Supra n.11, at p.24.
- Article 141, Constitution of India.
- Diwan, P., Modern Hindu Law, 17th Ed. (2006).
- Ibid, See also Supra n.1 at p.29.
- Hindu Law and the Constitution, 2nd ed., 2005.
- Hon’ble Katju, M. J., Ancient Indian Jurisprudence vis-à-vis Modern Indian Jurisprudence, AIR 2008 Journal 65 at p.66. See also Hon’ble Katju, M. J., The Mimansa Principles of Interpretation, AIR 2002 Journal 119 at p.122.
- Supra n.23 at p.20.
- Sen, P., Hindu Jurisprudence, 2nd Ed. (1984) at p.21.
- Supra n.23 at p.33; See also, Gaur, A., Commentaries on Hindu Law, 1st ed. (2007) at p.10.
- See Derrett, John D.M., Critique of Modern Hindu Law, 1st ed. (1970).
- (1981) 3 SCC 689.
- Supra n.23 at p.54.
- AIR 1951 SC 280.
Written By: Debanshu Khettry, Third Year, BA/ BSc LLB (Hons) NUJS, Kolkata
