Sources of any customary laws are the practices which are been carried out since time immemorial and they have a positive impact on society. Spiritual believe and saying can also become a source of customary law.
Any practices to become a source of law should satisfy two conditions-
- It should have been followed since time immemorial.
- It should not be against equity, justice, and good conscience.
There are two sources of Hindu law
- Ancient source
- Modern source
Ancient source includes- Shruti, Smriti, digests and commentaries and customs.
This word has been derived from the word shru which means ‘to hear’. It is primary and paramount source of Hindu law and is believed to be the language of divine revelation through sages.
This word has been derived from smri which means “to remember”. Smritis contain that part of shrutis which the sages forgot to add in their original work and thereby it was added later.
DIGEST AND COMMENTARIES
Commentaries (tika or bhashya) ad digest (nibandhs) cover more than a thousand years. In the first part of the period, most of the commentaries were written on smritis but in the later period the work was in the form of a digest containing a synthesis of various smritis and explaining and reconciling various methods.
The evolution of various school of law has been possible because of these commentaries
Practices carried out since time immemorial by a caste or class of people are called customs. Custom is a principle source and its position is next to shrutis and smritis but usage of custom prevails over smritis . It is superior to written law.
Modern sources include – equity justice and good conscience, legislation, and precedents.
EQUITY JUSTICE AND GOOD CONSCIENCE
Occasionally a case might come before the court on which there is no law or precedent is available. In such a situation the court has to pass the judgment based on equity, justice, and good conscience.
Legislation is an act of parliament which has played a profound role in framing Hindu law. Some of the framed Hindu laws are The Hindu Marriage Act 1955, The Hindu Adoption and Maintenance Act 1956, The Hindu Succession Act 1956.
A precedent or authority is a legal case that establishes a principle or rule. This principle or rule is then used by the court or other judicial bodies use when deciding later cases with similar issues or facts. The use of precedent provides predictability, stability, fairness and efficiency in the law.