"Sources of Hindu Law.

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Sources of Hindu Law Three main sources of Hindu dharma or Law are-
Shruti, Smriti, and Custom.
Shruti literally means what is heard (the Vedas). It is believed to be the language of the
divine revelation through sages.Four Vedas:The Rig-Veda (the book of mantra)The Sama-
Veda (the book of song)The Yajur-Veda (the book of ritual)The Atharva-Veda (the book of
spell)The Vedas are the compilation of the mantras or the hymns.Originally, Vedas were
chanted orally and transmitted to the successive generations by Guru-Shishya
parampar.Krishna Dwipayana Vyasa gave them a written form at the end of Dwapara .

Veda Samhita Karma Kanda Ceremonial rites and rituals Brahman

Aranyakas Jnana KandaPhilosophy and spiritualismUpanishadsA Samhita
is a collection of mantras. The Samhitas are named after the Vedas they
belong to.The Brahmanas are mostly in prose and are concerned with
religious rights and rituals. The Aranyakas reflect an explicit transition in the
philosophy of life of man.Most of the Upanishads are in forms of dialogues
between a master and a disciple.
Vedanga : The Vedanga (limbs of the Veda) are six auxiliary disciplines traditionally
associated with the study and understanding of the Vedas.Shiksha : phonetics, phonology
and morphophonology (sandhi) Kalpa : ritual Vyakarana : grammarNirukta : etymology
(the study of the sources and development of words) Chhanda : meterJyotisha : time
determination part of which is Astrology
 Vedanta In earlier writings,
Vedanta simply referred to the Upanishads.Chronologically it started including-The
UpanishadsThe Brahma SutrasThe Bhagavad Gita

UpavedasThe Four Upavedas (following the Vedas) explain arts and sciencesAyur-veda
(medicine)Gandharva- veda (music and dance)Dhanur-veda (warfare)Shilpa-veda
(architecture)

Smiriti Smriti means that which is remembered

(the lawbooks, Puranas, Itihasas).The basis of the Smritis are the Srutis, but they are
human works. Two kinds of Smritis:Early Smritis- Dharmasutras (ধর্সুত্র) andLater Smritis-
ম াস্ত্র)Their subject matter is almost the same.The Dharmasutras are
Dharmashastras (ধর্শ
mainly written in prose, in short maxims (Sutras) and the Dharmashastras are composed
in poetry (Shlokas).

Dharmasutras and Dharmashastras

Dharmasutras were mainly in the form of training manuals to teach Dharma to the
students.Dharmashastras were based of Dharmasutras.They dealt with the subject matter
in three parts:Aachara : Theories of religious observances,Vyavahar : Civil law
andPrayaschitta : Penance and expiation.

Smiriti writersSome of the important sages whose dharmasutras are known are:
Gautama, Baudhayan, Apastamba, Harita, Vashistha, and Vishnu.Other notable
Smriti writers are Manu, Atri, Vishnu, Harita, Yajnavalkya, Yama, Katyayana,
Brihaspati, Parashar, Vyas, Shankh, Daksha etc.
Three notable SmritisOut of may Dharmashastras, three are most
important.ManusmritiYajnavalkya
SmritiNarada SmiritiManusmriti compiles all the laws that were scattered in pre-smriti
sutras and gathas.Holds local customs with utmost importance.King represents the divine
but bound by customs.Principle of 'danda' for breach of law.Particularly harsh on
women and sudras.

Three notable Smritis Yajnavalkya Smriti More logical than Manu.

Importance to customs but hold the king subject to law.Law is the king of the kings
and the king is only an enforcer of the law.Mostly dealt with civil law comparatively
lesser with religion and morality.More liberal on women and sudras.Narada
SmritiImportance on customsConcentrates only on civil law and no deal with religion
and morality.
Commentaries and Digest
Commentaries (Tika or Bhashya) and Digests (Nibandhas)In the earlier days most of
the commentaries were written on the Smritis.In the later days the works were in the
nature of digests containing a synthesis of the various Smritis and explaining and
reconciling the various contradictions.Mitakshara is a commentary and Dayabhaga is a
digest.
Commentaries as a source of law
The law of the Smritis was empiric* and progressive.In the course of time several
Commentaries and Digests(Nibandhas) were written on it.The authority of the several
commentaries varied in different parts of India.And thus arose different schools of law.*
derived from experiment and observation rather than theory.
Schools of Hindu lawThe remoter sources (Smritis) are common to all different
schools;These common works became the subject of subsequent commentaries;The
commentator put his own gloss on the ancient text;His
authority have been received in one and rejected in another part of India;And thus
schools of conflicting doctrines arose;

Mitakshara and Dayabhaga school :

Dayabhaga school prevails in Bengal; the Mitakshara school prevails in other
parts of India.Mitakshara was written by Vijnaneswara (বিজ্ঞানেশ্বর). It is a running
commentary on the code of Yajnavalkya(যাজ্ঞিল্ক্য).Dayabhaga was written by
Jimutavahana (জীর্ূ তিা হে ). It is not a commentary on any particular code, but
purports to be a digest of all the codes.
Schools….. The Dayabhaga is of supreme authority in Bengal;
The Mitakshara is of supreme authority throughout India except in Bengal.Even in
Bengal, when there is no express conflict Mitakshara has a high authority.Of course
Dayabhaga prevails.Dayabhaga may also be referred to in a Mitakshara case on points on
which it is silent.
Schools…..Dayabhaga school differs from Mitakshara school in two main
particulars:the law of inheritance;the joint family system.It is said that the Mitakshara
school is the orthodox school, and the Dayabhaga school is the reformed school.
Sub-divisions of Mitakshara school
Sub-schoolPrincipal worksBenares school(Northern India)Viramitrodaya
(িীরবর্নত্রাদয়) Nirnayasindhu

মর্য়বু
(বে সন্ধ ) Mithila school(Half of Bihar and a part of Nepal)Vivada Chintamani (বিিা দ বিন্তার্বর

্)Madana Parijata ( র্দে পাবরজাত)Maharashtra or Bombay School(Western India)Vyavahara

Mayukha (িযি হা র
র্য়খূ ) Viramitrodaya( িীরবর্নত্রাদয়)Dravida or Madras school(Southern India)Smiriti
Chandrika (স্মৃবতিন্দ্রি
কা)Parashara Madhaviya (পরাশর
র্াধিয)Saraswati Vilasa (সরস্বতী বিলাস)Vyavahara Nirnaya (ি যি হার বে র্য়ম )
Works on adoption Two special works on adoption are
Dattaka Mimansa (দত্তক র্ীর্াাংসা)Dattaka Chandrika (দত্তক
িন্দ্রিকা) Dattaka Mimansa is preferred in Mithila and Benares, and Dattaka Chandrika
in Bengal.
Custom as a source of law
Conflict between custom and text of the Smiritis- the custom overrides.“Clear proof of usage
will overweigh the written text of law” – Collector of Madura v. Moottoo
Ramalinga(1868)Courts recognize three kinds of Hindu customs-Local customs;Class
customs;Family customs .
Essentials of a valid custom
It must be ancient, certain and resonable, and being in derogation of the general rules of law,
must be construed strictly. (Hurpurshad v. Sheo Dyal- 1876) It should be established by clear
and unambiguous evidence. (Ramalakshmi v. Sivanantha) It must not be opposed to morality
or public policy, and it must not be expressly forbidden by law. (Vannia Kone v. Vannichi
Ammal- 1928)
Valid custom: It must not be in derogation of the fundamental rights of a citizen to hold and
dispose of property by absolutely prohibiting alienation of property. (Sheikriyammada Nalla
Koya v. Administrator, Union Territory-1966) Custom alleged not followed in numerous
instances is held not proved. (Ishwarbai v. Bhagwandas) The usage has, by common consent,
been submitted to as the established governing rule of a particular locality since long. (Gokal
Chand v. Pravin Kumari-1952)
Valid customBurden of proof of a custom goes to the party relies on it. Custom must
always be a matter of fact, not a matter of mere theory.(Saraswati v. jagadambal- 1953)
Thank you