Smritis As Source of Hindu Law
The Hindu system of law has the most ancient pedigree known as the system of law, the Hindu law system is about 6000 years old & has passed through various phases & came to subserve the need of pastoral people & now to subserve the needs of modern society.
The source is derived from the Latin word sourdre, which means to rise, spring out. So, a source is a thing that you get something. Hindu law derives its source from ancient & modern sources.
An ancient source of Hindu law is
- Digest & commentaries
- Equity, Justice & Good conscience
- Judicial Decision
Smritis are ushered in the era of the systematic exposition of the rules & principles of law, this is also known as the golden age of the Hindus. The word smriti means “ what has been remembered” in theory smritis is based on the memory of the sages who were the repositories of the sacred Revelation. the smritis may be divided into early smritis & the later smritis called as known as the Dharmasutras & Dharmashastras. There was a shift from Samhita Charanas to Sutra Charanas during this period Sutras were reduced to writing.
Types of Smritis
The Smritis may be divide into Dharmasutras & Dharmashastras
Dharmasutras (800-200 BC)The timeline of Dharmasutras is 800-200 BC the
Dharmasutras were written in prose, though few of them were written in both prose & verse The Dharmasutras deal with the duties of men in their various relations,
Types of Sutras:
They are three types of Sutras,
- Shrauta Sutra: It deals with rituals, sacrifice, and mandaras.
- Grihya Sutra: It deals with domestic ceremonies.
- Samaya Sutra: It deals with the law & customs of human beings with temporal duties.
Generally, Dharmasutras bear the names of their authors.
The authors of the Dharmasutras take the law from earlier Gathas, Sutras & customs which had grown up bit by bit & reduced them into some order & symmetry, the authors of Dharmasutras are as follows
Gautama belonged to the Sama Veda school Gautama Dharmasutras is considered to be the oldest of Dharmasutras, its deals with legal & religious matters. In legal matters, it deals with Srithana property, inheritance, and partition. In his works, he recognized the practice, tradition, usage, and custom of Hindu law.
He belonged to the Krishna Yajurveda school. He lived on the eastern coast of Andhra Pradesh his writings deal with marriage, sonship, adoption & inheritance In his work, he mentioned several customs, which three are important, namely
- South-Indian Custom: It permitted a male Hindu to marry his maternal uncle’s daughter or his sister’s daughter.
- North-Indian Custom: It permitted a man for trading into arms and go to sea.
- Another custom permitting the king to impose excise duties.
He belonged to the Krishna Yajurveda school Apastamba Dharmasutras is considered the best-preserved one in his deals with legal & religious matters. he emphasized that the Veda was the source of all knowledge.
He belonged to the Rigveda, which deals with marriage, sonship, adoption, and inheritance source of law, he recognizes six forms of marriage & excludes from his reckoning the Paisacha & the Prajapati.
His Vishnu smritis is partly in an aphoristic style & partly in verse. it deals with criminal law, civil law, marriage, sonship, adoption, inheritance, debt, interest, and treasure trove. Vishnu smritis are closely connected with Manu smritis.
Harita smritis deals with the source of Dharma, Brahmacharya, Snataks, householder, prohibition about food, impurity on birth & death, duties of kings, rules of statecraft, etc..,
It is posterior in point of time to compare with Sutras. The period of Dharma Sastras is above 200BC, Dharmasutra is composed of poetry that deals with the subject matter in a very systematic manner.
They are three types of Dharmasutra
- Achara deals with relating to morality.
- Vyavahar its signifying deals with procedural & substantive rules.
- Prayachit is signifying the penal provision for the commission of a wrong.
Most important later smritis are Manusmritis, Yajnavalkya smritis & Narada smritis
- Manu smritis
The period of Manu’s Smriti is 200BC. It is complete work and deals with both legal and religious matters. Manu described in the Manu smritis as the first ancestor of mankind is purely a mythical figure, even in Veda manu is recognized in these words “whatever Manu says is medicine. It consists of 2694 slokas, arranged in 12 chapters. Out of 12 chapters, 4 chapters deals with religious matters, and the remaining 8 chapters deal with secular law, that is civil, criminal, and domestic law pointed out all these laws into 18 titles of law, these are,
- Recovery of debt
- Pledge and deposit
- Sale without ownership
- Concerns among partners
- Resumption of gift
- Disputes regarding boundaries
- Dispute between master and servants
- Sale and purchase
- Non-payment of wages
- Unfulfilled agreement
- Robbery and violence
- Duties between husband and wife
- Gambling and betting.
Manu smriti is a landmark in the legal history of India.
- Yajnavalkya Smritis.
The yajnavalkya smritis comes after Manu smritis. The period of this Smriti is 100AD. Yajnavulkaya belongs to Sukla Yajurveda & closely connected with Brihadaranyak Upanishad. It is versed in nature. He belonged to Mithila school, It is mainly based upon Manu’s Smriti. However, his work is more logical, scientific, and constructive. This work consists of three parts, these are
The Yajnavalkya Smritis deals with rules of procedural law in detail. As per Yajnavalkaya’s Smriti, the rights of human beings are not restricted within the above titles of law, but if any right of the human being is violated by anyone, he can seek relief before the court of law.
In his work, he also pointed out and recognized 12 kinds of sons, these are,
- Legitimate son
- Son of an appointed daughter
- Son of wife
- Son of hidden origin
- Damsel’s son
- Widow’s son
- Adopted son given by parents
- Son made 9. Son bought
- Son self-given
- Adopting a forsaken son
- Son of wife pregnant at the time of marriage.
- Narada Smritis.
The Narada Smritis is the last of the three metrical Dharmasutra The period of this Smriti is 200AD. Narada is believed to belong to Nepal. This is the first legal code that is mostly free from moral & religious feelings. Narada deals only with Vyavahara & does not deal with Vyavahara & Prayaschitta
The Narada smritis deals with the law of procedure & pleadings in deals with remarkable clarity. his work is divided into two parts, First part dealt with judicature and the administration of justice. The second part dealt with 18 titles of law specified by Manu in his work.
his Smriti pointed out 4 fold stages for deciding every dispute, these are,
- Using Dharma
- Through Vyavahara (evidence of witnesses, in the absence of Dharma)
- Using Charitra (evidence of documents, in the absence of the above two)
- Through Raja Sasana (Edicts or knowledge of the king).
- R.Myneni,Hindu Law(Family Law-I) , (Asia Law House, Hyderabad, 2009).
- Paras Diwan , Modern Hindu Law,(Allahabad Law Agency, Haryana, 24th, 2020).
- Neera Bharihoke, Mulla Hindu Law,(Delhi Law House,Delhi,2021) .
Author: Gururaj G Udagi,
Karnataka State Law University, 3rd year Student