Hindu & Christian Family

Law
LAW301
Md. Hasnath Kabir Fahim
LLB (Hons.), LLM (First Class First)
PGD in Genocide Studies (DU)
Lecturer
School of Law
Chittagong Independent University (CIU)
 Sources of Hindu Law
 Hindu system of law has the most ancient pedigree of the
known system of law.
 If the Vedic period is accepted to be 4000 to 1000 B.C.,
Hindu law is about 6000 years old.
 In this span of 6000 ears, it has passed through various
phases. At times it has developed and grown remarkably
well.
 it is always desirable that law should conform to the
changing needs of society and life, Just as society
progresses and undergoes changes so must the law.
 The study of sources of Hindu law is the study of various
phases of its development which gave it new drives and
vigour, enabled it to conform to the changing needs.
 Classification of sources of
Hindu Law
 Ancient Sources
(i) Sruti,
(ii) Smriti,
(in) Digests and Commentaries, and
(iv) Custom

 Modern Sources
(i) Equity, justice and good conscience,
(ii) Precedent/Judicial decisions
(iii) Legislation
 Ancient Sources: Sruti
 Hindu law is considered to be a divine law, a
revealed law.
 The theory is that some of the Hindu sages had
attained great spiritual heights, so much so
that they could be in direct communion with
God.
 At some such time the sacred law was
revealed to them by God Himself.
 This revelation is contained in Sruti or Vedas.
 The word Sruti literally means "what was
heard".
 The Vedas, thus, contain the divine revelation.
 Ancient Sources: Sruti-2
 The term Sruti stands for four Vedas viz., the Rig, the
Yajur, the Sama and the Atharva, along with their
respective Brahmanas.
 The Brahmanas are like appendices to the Vedas
which are added later on. They deal with various
ceremonies, rituals, and sacrifices.
 Since the Vedas are said to contain the voice of God,
they are considered to be the fundamental or the
primary source of law.
 The Vedas are said to be the source of all
knowledge.
 In that view the entire body of Hindu law has
emanated from the Vedas.
 Ancient Sources: Sruti-3

 However, Veda’s importance as a source of

positive law is doubtful.
 One view is that the Vedas contain practically no
law and are of little value.
 The Vedas contain passages alluding to the
Brahma, Aura and Gandharva forms of marriage,
to the necessity of son, to the Kshetraja, the
Dattaka and the son of the appointed daughter, to
partition, among sons, and to exclusion of women
from inheritance.
 Thus it would be wrong to say that the Vedas are
totally devoid of law.
 Ancient Sources: Sruti-4
 To understand the contents of the Vedas, we have to
keep in mind the Vedic social context.
 The approximate period of the Vedas is now accepted
to be 4000-1000 B.C.
 The Vedas depict the way of life of our early
ancestors.
 This is the period when the Vedic Aryans after
trekking into rich and fertile lands of the Punjab and
the Doab had settled down.
 They constituted an essentially pastoral-cum-
agricultural society. They had a tradition of
civilized life and rich thought.
 Ancient Sources: Sruti-5

 In sum, the Shruti (or the Vedas) does not deal

with rules of law in any systematic manner.

 Kane says that the Vedas do not profess to be

formal treatise on Dharma; they contain only
disconnected statutes on various aspects of
Dharma; we have to turn to Smritis for a formal
and connected treatment of the topics of the
Dharmastras.
 Ancient Sources: Smritis
 The systematic exposition of the rules and principles
of law. This is known as the golden age of the Hindus.
 The word 'Smriti' literally means "what has been
remembered".
 In theory the Smritis are based on the memory of the
sages who were the repositories of the sacred
Revelation.
 The Smritis may be divided into early Smritis (the
Dharmasutras) and the later Smritis (the
Dharmashastras).
 What has happened that the Vedas were to be
understood in the light of the new needs of the
society.
 Dharmasutras: early Smritis
 The Dharmasutras were mostly written in prose,
though a few of them were written both in prose and
verse.
 The approximate period of the Dharmasutras is
usually reckoned to be between 800 and 200 B.C.
 The main Dharmasutras are : Gautama, Baudhayana,
Apastamba, Harita, Vasistha and Vishnu.
 These are other Dharmasutras also but not known
much about them.
 They do not pretend to be anything more than the
compositions of mortals, based on the teaching of the
Vedas, on the decision of those who were acquainted
with law, and on the customs of the Aryans.
 Dharmasutras: early Smritis-1

 Most of the Dharmasutras mingled religious

and moral prospects with secular law.

 The authors of the Dharmasutras took the law

from Gathas and Sutras and custom which had
grown up bit by bit and reduced them to some
order and symmetry.
 Dharmashastras: later Smritis
 The later Smritis or Dharmashastras are mostly in
metrical verses, and are later in age than the
Dharmasutras.
 Most of the Dharmashastras are divided into three
parts : Achara, Vyavahara and Prayaschitta.
 The first deals with the rules of religious observances.
 The last deals with the penance or expiation.
 The second part deals with civil law.
 Kane says, all these Smritis are not equal in authority.
Most of them are obscure and are rarely cited by ancient
commentators.
 Excluding the Dharmasutras, hardly a dozen Smritis
have found commentators.
 Manu Smriti
 Of the later Smritis, those of Manu, Yajnavalkya and
Narada are the most important.
 The Manu Smriti has been all along considered to be
supreme authority in many countries.
 It is not known the identity of the person who compiled
this work.
 We know that the name of Manu has been mentioned
from the earliest.
 Sometimes he is referred to as Vridha (old) Manu,
sometimes as Brihat (great) Manu, sometimes as Adi
Manava (first patriarch).
 It may be that Manu, described in the Manusmriti as the
first ancestor of mankind, is purely a mythical figure.
 Manu Smriti-2
 The approximate date of the compilation of Manu Smriti
is placed at 200 B.C.
 Although Dharmasutras dealt with many titles of law,
they were not compendium of law dealing with all
branches of law.
 The Manusmriti supplied a long-felt need of a legal
treatise which could be a compendium of law.
 it is a systematic and cogent collection of rules of law.
 It is the most authoritative reservoir of law.
 Manusmriti is a landmark in the legal history of India and
is a great reservoir of concepts of law, legal rules and
institutions.
 The Manusmriti also gives a vivid idea of the customs of
the then society and social and religious observances of
the people.
 Digest and Commentaries
 In an ever-advancing society, a clear and systematic
exposition of rules of law, legal concepts and principles
was necessary.
 The rules of law enunciated in the Smritis were not
always clear cut and they did not cover all situations.
 One Smriti differed from another, and sometimes in
the same Smriti, there were conflicting texts.
 Thus, the need arose for further analysis,
systematization and assimilation of law.
 This need was satisfied by the Commentators and
Digest-writers.
 The Commentaries and Digests cover a period of
about one thousand years from A.D. 700 to A.D. 1700.
 Digest and Commentaries-2

 The last of the commentaries is by Nanda Pandit

on the Vishnu-dharmasutra called the Vaijayanti.

 It was written in the 17th century.

 Till the 12th century, the general tendency was to

write commentaries (tika) on a particular smriti,
but from the 12th century onward the trend was to
write Digests (nibandha) on several Smritis, and
thereby to attempt to synthesise all the topics in
the smritis.
 Custom
 Custom was the main vehicle of legal development.
 It has been seen earlier that though the Vedas and
the Smritis are said to contain Divine Revelation, in
reality, they incorporated mostly the customs of their
times.
 After the law reduced into Writing by the Smritikars,
the process of legal development was carried on by
the Digests and Commentaries.
 The Digest writers and commentators in their turn
further incorporated the existing custom.
 But it would be a misnomer to say that the smritis,
the Digests and the Commentaries, incorporated
the entire custom or that they have just given it a
formal shape.