Hindu Law, it has rightly been observed, has the most ancient pedigree of any known system of jurisprudence. However, it is not “law” as understood in modern times. Today, the word “law” signifies an Act passed by the Legislature of a country.
Ancient Hindu Law, however, is not the result of any such legislation governing the Hindus. Hindu law is supposed to be of divine origin, being derived from the Vedas, which are the revelations of the Almighty Himself. Law, as understood by the Hindus, is a branch of Dharma, i.e., the duties and the rules of conduct (moral, religious and political) enjoined by God on the Hindu community. Its ancient frame-work is the law of the Smritis, which declare the rules of Dharma.
Thus, it covers all the systems of law, civil, religious and moral, which are treated separately in modern times. Hindu Law is thus “what is followed by those learned in the Vedas, and what is approved by the conscience of the virtuous who are exempt from hatred and inordinate affection”. (Manusmriti)
Thus, Hindu Law, as understood in ancient times, was not the command of the political sovereign of a community. Rather, it was a command of the Supreme Being, applicable both to the king and his subjects, the ruler and the ruled. The observations of the Privy Council in Mookka Kone v. Amma Kutti, (51 Mad. 1) are interesting.
In this case, the court observed: “What is ordinarily understood as Hindu Law is not the customary law of the country like the common law of England. Neither is it a statute law, in the sense that some king or legislature framed the law, and enforced its acceptance by the people. The Hindu Law, as commonly understood, is a set of rules contained in several Sanskrit books, which the Sanskritists consider as books of authority on the law governing the Hindus”.
However, it may be observed that Hindu Law was, at no time, static or staid, but was emperic and progressive. Yet, Sir Henry Mayne and some of his contemporaries propounded the speculative (and rather uncharitable) theory that Manusmriti and the other Codes did not, at any time, constitute a set of rules of positive law administered in India. In their opinion, such Smritis merely reflected the ideal picture of that which, in the opinion of the Brahmins, ought to be the law. An eminent English author has even dared the observation that Hindu law was “a mere phantom of the brain, imagined by Sanskritists without law, and lawyers without Sanskrit”. Allegations such as these have been ably met by Hindu jurists, as for instance Dr. Sen, who has rightly observed that the critic, who pretended to see nothing in Hindu Law except a stagnant mass of archaic rules, knew not what he said, and only showed that he himself had a stagnant mind!
Today, however, the picture is different. Once upon a time, Hindu Law was a mixture of religion and legal philosophy. Today, legislation has come on the scene, and has considerably curtailed the extent of the application of the uncodified Hindu Law.
Thus, for instance, if a Hindu commits murder or rape, he will not be tried today according to the ancient Hindu jurisprudence; rather, his case will be governed by the Indian Penal Code and the Criminal Procedure Code, which apply to all other Indians also.
In the earlier texts, Hindu Law has been defined as “the Law of the Smritis as expounded in the Sanskrit Commentaries and Digests which, as modified and supplemented by custom, is administered by the Court” (Mayne’s Treaties on Hindu Law). Today, such a definition of Hindu Law cannot hold good. A very large portion of Hindu Law has now been codified, and is mainly to be found in the following four Acts:
(1) The Hindu Marriage Act, 1955
(2) The Hindu Minority and Guardianship Act, 1956
(3) The Hindu Succession Act, 1956
(4) The Hindu Adoptions and Maintenance Act, 1956.
However, the law relating to Hindu Joint Families, their partition and re-union, as well as the law relating to wills, gifts and religious usages and institutions, (in so far as it is not abrogated or modified by any other Act) continues to be derived from the ancient sources of Hindu Law.