Sources of

Hindu Law
DR. MAMTA RANA
ASSOCIATE PROFESSOR
Introduction

 Hindu law is one of the most ancient systems of law in

“its height of perfection, richness of details and wealth of
juristic and philosophical speculation”, it can be
compared with the oldest system of law known to the
world.
Contd..

 The sources from which Hindu Law is derived may be

divided into two categories:
 Ancient Sources
 Modern Sources
Ancient Sources

a) Shruti
b) Smriti
c) Digests and Commentaries
d) Custom
e) Kings Edits
Shruti

 The word Shruti has its roots in the word Shru which means to
hear. Hence, the Shruti’s are the works which were heard by the
great sages during their trance or that which was revealed to them
in that state of mind. That is why Hindu Law as well as Muslim Law
is called a revealed law which contain ipsissima verba (the precise
words) of the divine revelation. The four vedas are the first in
sequence:
 Rigveda(the praise of forces of Nature)
 Yajurveda(rituals)
 Samveda(prayers)
 Athervaveda(magic,spell and incantations)
 Shrutis are believed to be the ultimate source of law. They governed
the Human conduct. They contain the root and the original sources
of Dharma. They contain facts from which rules may be inferred.
CONTD…

 The six vedangas i.e., appendages to the vedas are second in the
series:
 Art(Kalpa)

 Grammar (Vyakarana)

 Couplet(Chhanda)

 Education(Shiksha)

 Asrotonomy(Jyotish)

 Reason(Nirukta)
Smritis

 Smrirti means recollection or what was heard. Smrirti is derived

from the word smar meaning “to remember”. Smriti are percepts of
great sages or rishis of antiquity who had the revelation present to
their memory and recorded them. It was handed down by rishis
from generation to generation.
 Manu smriti, Yagnavalkya and Narada Smriti are the oldest one.
Smriti is next in priority to vedas.
 “Where there is a conflict between the vedas and the smritis the
vedas should prevail”said by Vyasa.
 In Shyam Sunder Prasad Singh v. State of Bihar(1980 SCC 720) If
there is difference of opinion among the smiritis, the court should
follow the practice among the people.If there is a clear usage, it
should be followed up.
 The period of 800 BC to 200BC was the period of smritis. In smritis
we find rules regarding marriage, succession, duties of king, rules
of partition,stridhan and criminal law .
Contd..

 The smritis are of two kinds:

 Dharamsutras(Early Smriti)
 Dharamshastras (Later Smiriti)
Dharmasutras

 The Dharmasutras are in prose in the form of aphorisms or

in mixed prose and verse. They are not exclusive codes on
civil law but mostly provide rules of guidance for different
stages of life and rights and duties of different castes of the
Hindu society
 Some of the Dharamsutras, which are original and
independent in composition, were composed centuries
before Christian era.
Such are the Dharamsutra of
Gautama
Apasthamba
Bandhayana
Vashistha
Gautama

 Gautama: Belonged to Sam veda .The most ancient and

has been copiously quoted by other Dharmasutra
writers.He mentions vedas, the traditions and practices
of those who knew the vedas as the principal source of
sacred law. He has discussed the various topics civil law,
criminal law, procedural law, punishment and functions
of the king.
 He also discusses law relating to marriage and
sonship,guardianship,inheritance,partition,srtidhan,
maintenance , 12 kinds of sons and refers to mixed castes
resulting from anuloma and pratiloma marriages.
 Hardatta wrote a commentary on Gautama Dharmasutra
whose views on the prohibited degrees of marriage are
referred to by later writers.
Apasthamba
 Apasthamba: Belonged to Taittiriya Sakha of
the black Yajurveda. He has despised sudras
and gives a very high place to Brahmans.
According him the authoritative source of
dharma are the vedas and usage of those who
know dharma. Punishments were according to
the gravity of offences but a brahmana was not
to be killed or injured or to be made a slave.
 He recognizes six forms of marriage and does
not recognize any secondary sons including a
dattaka son.The impotent , lunatic and sinners
are excluded from inheritance. Inheritance in
absence of son goes to nearest spinda and was
against the rule of primogeniture.
Baudhayana

 Baudhayana: Belonged to black Yajurveda and belonged

to south. He refers to vedas, traditions and the practices
of the Sistas and sources of Dharma. He enumerates eight
forms of marriage and 12 kinds of sons. In partition he
favored larger share to the eldest and the dependence of
women. An outcaste or his off-spring was not entitled to
any maintenance.
Vasistha

 Vasistha: Vasistha largely quotes from the Rigveda and

other Vedic Samhitas. His work has resemblance with
Baudhayana. He enumerates six kinds of marriage
permitting Anuloma marriage with the prohibition of a
sudra wife for brahmin. He refers to 12 kinds of sons and
prescribes double share to the eldest son.
Dharmasasatras

 Dharmasasatras: They were mostly concerned with rules

about the conduct of men and did not deal with rituals
and treated the subjects under three heads viz. Achara,
Vyavahara and Praysaschitta.
 Smritis are called Dharmasasatras and are in metrical
verses. Some Smritis like Yajnavalkya, Prasara and
Narada were composed in the first centuries Christian
era but most of other Smritis were composed from 400
AD to 1000AD
Manusmriti

 Manusmriti : Of the numerous Smritis, the foremost in

rank or authority is the Manu Smriti.It is the most
ancient of all the metrical smritis.It was complied around
200 BC. There is, however, some mystery regarding the
identity of the real author of Manusmriti It not only
defined the way of life in India but is also well known in
Java, Bali, and Sumatra.
 The code of Manu is divided into twelve chapters and
eight chapter describe eighteen topics of law which
include both civil and criminal law. The law of
inheritance, contract, property, master-servant
relationship, duties of the king, defamation etc are
prominent. He was a Brahman protagonist and was
particularly harsh on women and sudras.
 He holds local customs to be most important. He
directs the king to obey the customs but tries to cloak the
king with divinity.
 A number of commentators have written commentaries
Yajnavalkya smriti

 Yajnavalkya smriti: It is more logical and systematic than

that of Manu and most illustrious of the vedic sages. He is
credited with having promulgated the white Yajurveda
due to strained relationship with his guru. It did not treat
the king as having divine right to implement the law but
implored him to look after the administration of justice
with righteousness and modesty.
 Recognition of woman’s rights to hold and inherit
property and the status of sudras.
 Work dealt elaborately with laws of partnership,
mortgages, hypothecation and laid special emphasis on
laws of procedure and evidence.
 Mitakshara is the running commentary on the smriti
Narada smriti

 Narada smriti was compiled around 400-500 AD

 Narada was a Nepali sage.
 Recognised widow’s remarriage, woman’s
power to hold and inherit property.
 Father’s absolute rights to gift his separate
property to his sons
 Supremacy of King made laws on Smritis.
 Also recommends gambling under state control
and a source of revenue.
 Commentary on the smriti is Narada Bhashya
by Ashaya.
Digest and Commentaries

 After the sutra and dharamsastra period comes

the era of commentators and digests.Tika and
Bhashya are called commentaries and nibandhs
are called digests. All the smritis did not agree
to one point and it gave rise to commentaries. It
modified the original text in order to suit them
to local customs and conditions. It helped in
setting up of different schools of Hindu Law.
 Jaimine gave the concept of literal rules of
interpretation and the concept of factum valet.
 The period of commentaries is between 700 AD
to 1700 AD
Contd…

Commentaries on Manu smriti :

Kalluka's Manavarthmuktavali,
Medhatithi's Manubhashya, (9th century)
Govindraja’s Manutika
Commentaries on Yajnavalkya smriti:
Vijnaneshwar's commentary -'Mitakshara' (11th
century)
Viswarupa(8th century)- Balakrida
Aparaka (12th century)-Aparaditya
Virmitrodaya by Mitra misra
Commentaries on Narada smriti:
Asahaya (7th century)
Custom

 From the earliest period custom (‘achara’) is regarded as the

highest ‘dharma’. As defined by the Judicial Committee custom
signifies a rule which in a particular family or in a particular class
or district has from long usage obtained the force of law.
 Sec(3a) Hindu Marriage Act,1955 Customs and Usages "custom"
and "usage" signify any rule which, having been
 continuously and uniformly observed for a long time, has obtained
the force of
 law among Hindus in any local area, tribe, community, group or
family:
 Provided that the rule is certain and not unreasonable or opposed
to public policy;
 Provided further that in the case of a rule applicable only to a
family it has not
 been discontinued by the family;
The codified Hindu Law has abrogated custom except in
few matters where customs has been expressly saved
like prohibition of marriage on ground of blood relations
or affinity, ceremonies of marriage & divorce- customs
are allowed to override statutory law . (Sec.4 Hindu
Marriage Act, 1955).

Collector of Madura v. Mottoo Ramalinga(1868)12 MIA

327 held “A clear proof of usage will outlay the written
text of law.”
Essentials of Valid Customs

 Antiquity and Certainty

 Continuity
 Reasonableness
 Immoral or opposed to public policy
In Gopikrishna vs. Mst Jagoo 1936 a custom that
dissolves the marriage and permits a wife to remarry
upon abandonment and desertion of husband was held to
be not immoral.
In the case of Hira v. Radha ILR37Bom.177, a custom
among dancing women permitting them to adopt girls
with the intention of training her up in an immoral
profession was held to be void because it was against
morality.
Opposed to express provision of Law
Proof of Custom

 Under section 48 of the Indian Evidence Act, the opinion

of a witness on the existence of a family or community
custom is admissible.
Types of Custom

 Local Custom
 Caste and Community based Custom
 Family Custom
 Guild Customs
Kings Edits

 Medhatithi and other commentators

expressely state that king could not
make rule opposed to sastras or usage of
the country. The king always executed
and never formulated laws except
through adjudication.
Modern Sources

 Equity, Justice and Good Conscience

 Legislations
 Precedents(Art.141 Constitution, Law declared by the
Supreme Court shall be binding on all courts)
Equity, Justice and Good
Conscience
 Equity, Justice, and Good conscience
Equity means fairness in dealing. Modern judicial
systems greatly rely on being impartial. True justice can
only be delivered through equity and good conscience. In
a situation where no rule is given, a sense of
'reasonableness' must prevail.
 According to Gautama, in such situation, the decision
should be given that is acceptable to at least ten people
who are knowledgeable in shastras.
 Yagyavalkya has said that where ever there are
conflicting rules, the decision must be based on 'Nyaya‘.
This principle has been followed by the privy council
while deciding cases.
Legislation

 In 1941, the then Government formed a committee

under the chairmanship of Shri B.N. Rao to report on the
desirability of codifying Hindu Law. The committee was
again revived in 1944 which gave its final report in the
form of Hindu Code Bill which evoked mixed response to
legislation in derogation of the received tenor of the
Dharmasastras. The Hindu Code Bill was split up and
passed in the instalments in the form of four major
enactments viz.
 Hindu Marriage Act,1955
 Hindu Succession Act,1956
 Hindu Minority and Guardianship Act,1956
 Hindu Adoption and Maintenance Act,1956
Precedent

 Article 141 of the Constitution says “ Law

declared by Supreme Court shall be binding on
all courts.”
 In Dudhnath v. Satnarayan( AIR 1966 All.
315(FB) it was said that Hindu Law is not the
shastrik law enunciated in books but was
court’s law as interpreted by the courts in
India.
 In Hanuman Prasad Pandey v. Bamoi Manara
Kumari( 1856MLA393) the rights and duties of
a defacto guardian is still binding upon the
courts and thus decision of the courts are
source of Hindu Law.
Thanks