Chapter 1.

sources of Hindu law

The Hindu Law is credited to be the most ancient law system which is approximately 6000 years
old. The sources of Hindu Law can be kept under two headings:-

1. Ancient or original sources: According to Manu there are four sources of

Hindu Law as per following details, in addition to these four there was also that what is
agreeable to one’s conscience such as

 Shruti
 Smriti
 Digest and Commentaries
 Custom and Usages

2. Modern Sources: Following are the modern sources of Hindu Law such as
 Equity
 Justice and good conscience
 Precedent
 Legislation

All the above sources can be enumerated as:-

 SHRUTI:- The name “shruti” is derived from the word “sru” which means to hear
and it signifies what is heard. Shruties are considered as the primary and paramount
source of Hindu Law. The shruti consist of the four Vedas and Upanishads dealing with
the religious rites that contain the meaning of attaining true knowledge and moksh as
salvation
  SMRITIS:-means ,”What was remembered” thus smritis were Smritis is known as
golden era, because it is era when well organised dependant on the remembrance of saints
and the era of creation of and serial wise development of Hindu Law started. It is the
second important source of Hindu Law. It is of two types first is prose style and the other
9is of poetry style. Smritis are divided into two :

 Dharam Surtra:- Dharam sutra are famous of Gautam, Buddhyan, Apastamb,

Harit, Vishnu and Vasith.
 Dharam Shashtra:- Are famous for Manu Smriti, Yagyavalkya Smriti, Narad
Smriti etc. Manu smritis made of 12 chapters and 2694 shlokas. Yagyavalkya
smriti is divided into 3 parts and is extremely clear, brief and organised. Narad
Smriti being the last smiriti is such first legal code which mentions subjects
related to Judicial process, courts and Judiciary.

 Digest and Commentaries:- These are the third important source of Hindu Law.
The commentaries through professing and purporting the rest on the smrities explains
modified and enlarged tradition recorded there to bring them into harmony and
accordingly to prevent practices of the day.

 CUSTOMS AND USAGES: – These are considered an important source of Hindu Law.
Narad Smriti says that, “Customs are powerful” they are above the religion. D.F.Mulla
says that, “Among the three sources of Hindu Law Custom and Usage are the one.”
According to Holland, “Custom is a step of generally followed conducts as a way is
created over gress by repeated walking similarly custom is created in accordance to the
conduct of everyday life.”

In Collector of Madurai v. Mottaramlingam –1868: Privy Council held that in Hindu Law the
clear proof of customs shall be more relevant then the basic epics of law.” Similarly
in Harparsad v. Shiv Daya -1816: It was said that, “the custom is family or particular class or
area owing to a long tradition.” Although codified law has given place to custom, but it is
limited. Codified Hindu Law recognizes custom only when it has been expressly given a place.
Custom under Hindu Marriage Act 1955 can be applied over two topics: i. Any Marriage may be
solicited by the customary tradition of the parties.; ii. Divorce can be obtained be prevailing
custom or usage and a married male of female above the age of 15 years can be adopted as
customary rules.

The Judicial Committee explained that, “Custom is a rule which in a particular family or in
particular district has from long usage, obtained the force of law. Hindu sages have recognized
good custom binding on the Hindu. Manu says, “In memorial is transcendent Law.”

 EQUITY, JUSTICE AND GOOD CONSCIENCE:- In India the origin of equity is

traced the Hindu period when jurists explained the old law and gave new rules of
interpretation and equitable solutions in cases of conflict between the rules of various
law. In case of a conflict between the rules of smrities that should be followed this is
based on reasons, justice and principles of equity. In view of the above observations and
its practical application it will not be incorrect to mention equity justice and good
conscience as the next source of Hindu Law. Actually Britishers not only established a
judicial system in India but also facilitated though the High Court charters that wherever
there is lack of lawful rules, their decision should be on the principles of equity, justice
and good conscience. In Gurmukh Singh v. Kamla Bai -1951: It was held that, Where
there is lack of rules of Hindu Law over any subject, there court should pronounce their
decision on the basis of principle of equity, justice and good conscience.

 Precedent: – It is an important source of law. It means he Judicial decision over any

disputed matter which shall be guideline for the disposition of future similar disputed
matters. Generally the decision of Supreme Court, High Court, Privy Council have the
effect of precedent over the subordinate court. The importance of Precedent as a source
of Hindu Law can be understood from the example that if we have to look into the
importance of custom and Usages in Hindu Law, then we shall have to analyse the
case: Collector of Madurai v. Mottaramlingam, it is pertinent to mention here that
there are certain rules for the application of precedent like :- i. The decision of Supreme
Court is binding over all the subordinate courts.; ii. The decision of Supreme Court is
binding to its subordinate courts.; iii. The decision of Privy Council is binding over all
 High Courts provided that it has not been over ruled by the Supreme Court in the Case
of Pandurang Kalu Patil v. State of Maharashtra – 2002.

 Legislation: – The last important source of Hindu Law is the legislation. Their source
has originated after the establishment of English State in India, when English rulers
started enacting several laws. Laws were enacted in accordance to the state, time and
circumstances, there were amended too.
 Chapter 2.Sourcs of Muslim law

Sources of Muslim law may be classified into two categories:

(a) The primary sources, and

(b) Secondary sources.

The Primary Sources:

(1) Quran:

The word Quran is derived from the Arabic word “Qurra” and properly signifies, “the reading”
or “that which ought to be read”. It is believed that Quran is of divine origin and was revealed to
Prophet Mohammad for the benefit of mankind. Quran is the first source of Muslim law in point
of time as well as in importance. It is the first source in point of time because, before Quran there
was no Islamic society as it exists today.The revelations were the communications of God and
were made by angel Gabriel to the Prophet. These communications or messages from God were
conveyed to the society by the Prophet through his preachings.The Prophet from time to time
used to deliver preachings to his followers saying that these were the messages to them from
God. The communications were in the form of verses and were remembered by the followers of
the Prophet. Some of them were also reduced to writing on palm-leaves, camel hide or even on
mud so that they may not be forgotten.The communications were in scattered form and were not
systematically revealed. After the Prophet’s death, the revealed verses were collected,
consolidated and systematically written under the authority of Osman who was the third
Caliph.A peculiar feature of the verses of Quran is that they are believed to be the very words of
God; Prophet Muhammad was simply the messenger of God to the society. Quran is of divine
origin, therefore, in importance it is the first source of Muslim law.

Salient Features of Quran as Source of Law:

Salient features of Quran as a source of Muslim law, may be summarized as under

(i) Divine Origin :Quran is of divine origin. It is believed in Islam that the words and the
verses of this holy book are made by Almighty God and not by any human being. The Prophet
simply uttered these words on behalf of God. Since Quran is compilation of the very words of
God, its words are unchangeable and its authority is unchallengeable.

(ii) First Source: Quran is the first and fundamental source of Islam in point of time. The
present Muslim religion was born with the words of Quran. Any study of Islamic principles or
the Muslim law must therefore, begin with it.

(iii) Structure:Quran is in the form of verses. Each verse is called ‘Ayat’. There are 6237
verses in Quran which are contained in 114 Chapters. Each Chapter of Quran is called ‘Sura’.
The various chapters are arranged subject-wise and have their specific titles. The first ‘Sura’ of
Quran is Surat-ul-Fatiha which is an introduction to the holy book and consists of verses in the
praise of Almighty God.

(iv) Admixture of Religion, Law and Morality: Quran is mixture of religion, law and
morality. Religion, law and morality are, at some places, mixed in such a manner that it is
difficult to separate them. In holy books of other religions too, we find the same peculiarity. For
example, in Vedas and Smritis (the fundamental sources of Hindu Law), the legal rales are
mixed with the moral code of conduct.

(v) Different Forms of Legal Rules: The verses of Quran deal with law in different
forms. Some of the verses have removed objectionable and evil customs like child infanticide,
unlimited polygamy, gambling, usuary (charging very high interest in loans) etc.

(vi) Unchangeable: The words of Quran are the words of God; therefore, it is the most
authoritative source of Muslim law. If any specific meaning has been attributed to a particular
verse of Quran, either by Shia or by Sunni authorities then, the courts have no power to give any
other meaning to that verse.

(vii) Incompleteness: Quran is not a complete code of Muslim personal law. It generally
contains verses relating to the philosophy of life and religion. Only about 200 verses deal with
legal matters. Out of these, only about 80 verses deal with personal law. Thus, only basic
principles of Muslim personal law are given in Quran.

(viii) Silence of Quran: On many legal issues the Quran is found to be silent. For new
problems of the society no legal solutions were available in the apparent words of Quran.

(2) Sunna or Ahadis (Traditions of the Prophet): Sunna or Ahadis means the
traditions of the Prophet. Whatever the Prophet said or did without reference to God, is treated as
his traditions and is the second source of Muslim law. Traditions are the injunctions of God in
the words of the Prophet.Where the words of God could not supply an authority for a given rule
of law, ‘Prophet’s own words’ were treated as an authority because it is believed that even his
own sayings derived inspiration from God.

What Constituted Sunna?

All the preachings and the practices of the Prophet (except when direct revelations from God
used to come) formed part of Sunna. What the Prophet said what he did and also his silence in a
question put before him, was all taken to be authoritative and become a precedent.

(a) Companions of the Prophet: They were such Muslims who lived during the life-time
of the Prophet and had the privilege of being in his close contact. This narration was treated as
most reliable.

(b) Successors of the Companions: Those Muslims who did not live during the life of the
Prophet but had the occasion of being in contact with the Companions of the Prophet were called
the Successors. Authority of the narrations of the successors was second in priority.

(c) Successors of the Successors: Such Muslims who neither lived during the life of the
Prophet nor during the life of any of the Prophet’s Companions, but were in contact with the
Successors, were called the Successor of the Successor of a Companion. Their narration was last
to be relied upon. Thus we see that the nearer was a Narrator to the Prophet, greater was the
force of his narration.
Kinds of Traditions: Recognition and acceptance of a tradition as a source of law depends
upon its authority and, its authority depends upon its proof given by the Narrators. From the
point of view of their authority and acceptance in the society, traditions may be classified as
under:

(i) Ahadis-i-Mutwatir (Universally Accepted Traditions): They are the traditions

which have continuously been narrated by indefinite number of persons. They are most
authoritative because there is no doubt in their genuineness and certainty. These traditions have
universal acceptance and are followed by all the sects of Islam. Abdur Rahim rightly observes
that traditions of this class, like verse of the Quran, ensure absolute certainty as to their
authenticity and demand implicit belief.

(ii) Ahadis-i-Mashhoor (Popular Traditions): Traditions, which have been narrated by

some Companion of the Prophet but subsequently accepted by majority of the people, are called
Ahadis-i-Mashhoor or the well known traditions. These traditions are not accepted unanimously
by all Muslims but a great majority has always recognised them as a source of law.

(iii) Ahadis-i-Ahad (Isolated Traditions): Isolated traditions have neither been

continuously followed nor followed by majority of the people. Only a certain section of the
society has accepted them as source of law. Where the authenticity of any narration was
doubtful, it was followed for some time only by few persons. Such traditions are called isolated
traditions because their acceptance and recognition is localised one. Majority of the jurists do not
recognise these traditions as a source of Muslim law.

(3) Ijma (Unanimous Decisions of Jurists):

When Quran and traditions could not supply any rule of law for a new problem, the ‘law-
knowing persons’ (jurists) used to agree unanimously and gave their common opinion over that
point. Persons having knowledge of law were called Mujtahids (Jurists).
Kinds of Ijma: Authority of Ijma depended upon the merit of the participator in its formation.
There were different categories of the jurists. Better was the category of jurists, greater is the
value of their opinions. From the point of view of authority and importance, there are three kinds
of Ijma:

(1) Ijma of the Companions: The concurrent opinions of the Companions of the Prophet
were taken to be most valuable and reliable. It was presumed that the Companions were the best
persons to act as jurists. Such Ijma, being most authoritative, could not be overruled or modified
by any subsequent Ijma

(2) Ijma of the Jurists: This was the unanimous decision of the jurists (other than
Companions) over a point of law in a particular age. In the absence of the opinions of the
Companions of the Prophet, it was natural that the opinion of other learned scholars of any age
was taken to be the law. A great mass of Hanafi rules of law have been formulated through this
kind of Ijma.

(3) Ijma of the People: The third category of Ijma is the opinions of the majority of the
Muslims. Sometimes the general agreement of the great majority of Muslims was also accepted
as law. As a source of law, this kind of Ijma has little value because of two reasons.

(4) Qiyas (Analogical Deduction):

In the Arabic language Qiyas means ‘measurement’. In other words, it means measuring or
comparing a thing in relation to a standard, or ‘to establish an analogy’. If there was any problem
before the society on which the texts (Quran, Sunna and Ijma) were silent then Qiyas was
applied to get the law.

In obtaining a law through Qiyas, following method was applied by the jurists
(Mujtahids): (a). A similarity was established between the new problem (for which the law
was required) and an identical problem given in the text. For establishing similarity, ‘reason’ or
the sense behind a text was taken into account rather than the meaning of its apparent words. In
this manner, the ‘common cause’ (Illat) of the two problems was found and analogy was
established between the given problem and a similar problem available in the text.

(b). After establishing the analogy, the solution of the problem given in the text was applied to
the new problem. Thus, the required law was directly deduced from the texts of Quran or Sunna
or the Ijma. It is significant to note that in this method new principles were not formulated. The
law was simply discovered from the spirit or the implied meaning of the text.

Secondary Sources:

(1) Custom (Urf or Taamul): Before Islam, the Arabs were governed by customary laws.
When Islam came into existence, most of the customs were found by the Prophet to be evil and
bad. Such bad customs were totally abolished by him and he declared them to be un-Islamic. But
there were certain pre-Islamic customs (e.g. dower, talaq etc.) which were good and tolerable.
The Prophet did not abolish them, and they continued in the society because the Prophet
sanctioned them by his silent approval. In this manner some of the good customs became a part
of the traditions of the Prophet i.e. Sunnat-ul-taqrir.

Importance of Customs: Although custom is not any formal source yet, its importance in
Muslim law cannot be under-estimated. In the absence of a rule of law in the texts of any of the
four primary sources, the customary practices have been regarded as law.

(2) Judicial Decisions: Judgment of a superior court becomes an authority for the courts
subordinate to it. The subordinate courts are bound to follow the law laid down in that decision.
This is called the principle of precedents and is followed in India on the pattern of the British
courts. Thus, a judicial decision of the Supreme Court of India is binding on all the High Courts
in so far as the law decided in that case is concerned. Similarly decision of a High Court is
binding on the subordinate courts. Muslim law is no exception to this judicial practice and
therefore, a point of law decided by the Supreme Court or a High Court of India becomes a
‘source of law’ for the courts subordinate to them. There is not much scope for the judicial
decisions as source of Muslim law. But, in the absence of any clear text of Muslim law, the
courts may interpret a rule of law according to their own concepts of justice. In such cases, the
Muslim law becomes what the courts say.

(3) Legislation:

In Islam it is generally believed that God alone is the Supreme Legislator and no other agency or
body on earth has authority to make laws. This belief is so deep-rooted that even today; any
legislative modification may be treated as an encroachment upon the traditional Islamic law. The
result is that as independent source of Muslim law, the legislative enactments are almost
insignificant. However, there are certain Acts which modify or otherwise lay down principles of
Muslim law, and for the modern courts in India these enactments are the only source of law on
the points covered by them.
 Chapter 3.Questionnarie

1. Evolution in the sources of law ( What are the things which got evolved
from the past into the law since it has been taken from the ancient
text)?
A .Change in some of the articles like (Hindu law )
 Hindu Widow Remarriage Act 1856.
 Prevention of Child Widow Act. 1929.
 Hindu Women’s right to Property Act. 1930.
 Hindu Women’s right to Separate Residence and Maintenance Act 1946.
 Hindu Succession Act 1956
 Hindu Marriage Act. 1955
 Hindu Adoption & Maintenance Act. 1956
 Hindu Minority and Guardianship Act 1956

B. Change in some of the articles like (Muslim law )

 The Mussalman Waqf Validating Act, 1913
 The Child Marriage Restraint Act, 1929
 The Muslim Personal Law (Shariat) Application Act, 1937
 Dissolution of Muslim Marriages Act, 1939
 Muslim Women (Protection of Rights on Divorce) Act, 1986
The wrong traditions was been followed by the people since past which converted
into the law some of them got enactment into our country .Which were unlawful
and being practice since ages. But till now some of the traditions (customs) which
are unlawful and got converted to the law are not changed like JALLIKATTU
BULL FIGHTING (which is cruel practice followed in Tamilnadu ).
2. Scope of change in law ?
Yes there is lot of scope in India to change in law but many of the people of our country
men are not known the basic laws which are been followed in our country. Like in
Muslims the polygamy is practice till today I think so that due to this the spouses of the
particular men under go certain family problems. Puberty marriage is also a main concept
Which I taken into the consideration now a days due to the life style the girl may under
go menstruation at age 9 even this is not mean that the particular family will force the girl
child to marry a man .From my point the girl who is just a child now we can’t force her to
marry .But why the law is not taking her mental situation into consideration.

Customs and traditions in India are not letting the law change
Likewise the traditions which are being followed by the people from their ancestors
slowly slowly became the customs which are being followed by the people at point of
time let the custom is harmful or unlawful then too is being practice in our country this
happens due to the religions in India .

Outlook on judiciary on the basis of change in laws in our

country
According to me judiciary in our country as per Muslim law concerned got less power if
the particular law is not mention in the Quran then only court interrupts in the law
binding them and changes it .But the whole Quran is a social life of prophet Mohammad
who himself called as a messenger of god and whatever he use to give the judgment at
that time was considered as a law and it has been written. Like in the case of
MOHD.AHMED KHAN V.SHAH BANO BEGUM.
 BIBLIOGRAPHY

1. https://www.legalbites.in/sources-hindu-law/
2. http://www.shareyouressays.com/knowledge/what-are-the-main-sources-of-muslim-law-
in-india/117538
 INTRODUCTION

Below research on sources of Hindu law and Muslim law in India deals with
the past sources from where the law has been taken or considered in our
country . As the Hindu law is has its basic two sources those are ancient or
origin sources and modern sources . The difference between this two is the
the ancient sources have been taken from the shruti,smriti,digest and
commentaries and custom and usages .Modern sources are been taken from
equity, justice and good conscience, precedent and legislation. Whereas the
Muslim law has been taken from the Quran. I discuss the problems faced by
the nation due to the laws which are taken from the ancient sources.
 Chapter 4.CONCULSION

As the sources of law which have roots in the past and the laws which are
given or written in the sources which are sometimes unlawful then to
because of the majority of the people are following those laws because of
this the judiciary is not able to change those laws. The main cause that why
judiciary is not changing the laws is that .If judiciary changes the laws
religion comes in between which may cause the strikes and many more
things which disturbers the peace and harmony of the country so the
conclusion is that for changing the laws the customs and traditions which
don’t have any origin or written form in the countries should be
amendments.
 Research Methodology

The through engagement in research is an essential precursor to writing a legal research paper.
Among the various existing legal methodologies, the presented research paper is a result a
Doctrinal Research. The research was completed by mainly focusing on few key points,
interpreting and locating of relevant sources of law.
Legal history is another research methodology adopted in this paper. Historical research
encompasses a range of possibilities including a study of the historical development. As the
sources of law taken from the past .
 Content

Chapter 1.Sources of Hindu law

Chapter 2.Sources of Muslim law

Chapter 3. Questionnaire

Chapter 4. Conclusion