Concept and sources of Dharma

 India’s legal system presents the most extensive and

diverse written law in the world.
 Law in India emerged from classical traditions rather
than a construction of a public body or state and the
system was considered as very near to people.
 The classical legal traditions of India were exclusively
recorded in the Sanskrit texts and believed to have
been developed by the ancient sages. These traditions
are widely understood as Hindu law which originated
from community principles and not from a state polity.
 The study of the classical legal traditions of India
attracted the interests of the scholars and
administrators throughout the course of Indian
history from ancient to colonial.
 Several attempts were made to study and glorify Indian
traditions during the early colonial period. The
Orientalists and Indologists of the British Indian
administration, in order to administer the colonized
territories and to become familiar with the laws and
habits of the country, attempted to translate and study
about Indian Legal literature
 Dharma is a Sanskrit word which defies all attempts at
an exact rendering in English or in any other language.
 Some rendering of this word according to dictionary
meanings are
 ordinance, usage, duty, right, justice, morality, virtue,
religion, good works, function or characteristic
 In most cases the meaning of dharma is religious
ordinances or rites
 In fact the term dharma in Hindu jurisprudence passed
through several transitions of meaning.In its most
prominent significance it stands for the privileges, duties
and obligations of man, his standard of conduct as member
of Aryan community and so on.
 Dharma acquired a meaning of what is just and customary.
The term ‘dharma’ is used in this sense, in the second verse
of the first chapter of Code of Manu
 Medhatithi, commenting on this text of Manu says that
the expounders of the smrtis dilate upon dharma as five
fold, eg., varnadharma, asramadharma,
varnasramadharma, naimittikadharma, (such as
samskara)and gunadharma
 The sources of Hindu law and Dharma are placed
in two categories: Sruti and Smriti literatures.
 Both Sruti and Smriti texts represent categories of
texts that are used to establish the rule of law
within the Hindu tradition.
 But, while Sruti is considered as divine origin or
that which was heard, Smriti texts are human
compositions or that which was remembered.

 Smritis or the human compositions lay down rules,
regulations, and laws governing the conduct of
individuals in ancient India.
 In a more theoretical sense, René Guénon has given the
distinction between the terms Śruti and Smṛti as ‘it is
equivalent to that between pure and direct intellectual
intuition on the one hand, and reflected consciousness
of the rational order on the other hand, the former
applying exclusively to the domain of metaphysical
principles, the latter exercising itself upon objects of
knowledge in the individual sphere’
 Though this definition seems complex, it
points out the metaphysical and
superhuman character of Śruti texts and
more rational and enlightened aspect of
Smṛtis. Sailendra Nath Sen has pointed out
that the Smritis are in agreement on many
points, but sometimes differ as to laws they
lay down
 Dharmasūtras are the earliest texts dealing with the
duties of the King and four varnas or social orders
 They also provide laws regarding taxation , property,
and family.
 The convincing aspects of Dharmasūtras are also the
elaborate discussion of the rules and duties of the
people at different stages of life like studenthood,
householdership, retirement and renunciation.
 The nature of Dharmasūtras is normative and this
reason makes room for a scholarly debate
The earliest books in the Smṛti literature are known as
Dharmasūtras.
 ‘Dharmasūtras are works on Dharma written in the Sutra
form, that is to say in the form of aphorisms which
condense the teachings imparted by a master and were
probably intended to be learned by heart by his disciples’.
 It is said that, while Dharmasūtras are the ordinances
written in condensed prose, the Dharamsastras on the
other hand are written in verse.
 Interestingly, there are around thirty five Dharmasutras,
but the Dharmasūtras like Gautama, Baudhayana,
Vasishtha and Apastamba are considered as the major ones.
 The difference between the Dharmasutras and the
Dharmashastras is not merely that of style
 The Dharmashastras are also distinguished by having a
greater concentration on law.
 They are also called Smritis and have played a notable
part in molding the life of the Hindus
 Although the Vedas are regarded as the ultimate
source of Dharma, in practice it is the Smritis to which
the Hindus turn for a real exposition of religious duties
and usages
 The Smritis expanded and systemized the socio-
religious regulations of the orthodox Brahmanical
culture .
 They are accepted as authentic guides to law, custom
and duty and carried immense authority in the
administration of justice and the prescription of duty.
 They deal with many topics such as Varnashram
Dharma i.e the duties and obligations of the various
varnas in different stages of life .
 They also enumerate the dharma of the King, the
judicial procedure and the sphere of substantive law
such as crimes, and punishments,contracts,partition
and inheritance, adoption
 The Smritis attached highest importance to moral
qualities but their main purpose was a practical one ,to
guide people to right acts in every day life.
 They dealt more elaborately with the acts, rites and
the ceremonies that each person has to do with
reference to his station in society.
 It is however difficult to say how closely the Smritis
reflect the actual laws and rules of the society but
there is no denying the fact that they were considered
authoritative both in the administration of justice as
well as the prescription of duty.
 The Smritis were written by Brahmins and reflect the
orthodox Brahmanical view.
 In time commentaries and digests were written on
them and were seized as a ready and simple guide to
sacred law and custom,since the regulations of the
codes had to be adopted to evolving societal needs.
 Manusmṛti also known as the MānavaDharmaśāstras is
the most well known.
 The composition of Manusmṛti could have been done in
different stages because of the contradictory statements
found in the chapters of the text.
 It was probably codified around the first century CE by a
sage named Manu.
 Manusmṛti, has an extra ordinary significance as a socio-
religious work for the Hindus in all times.
 It is the most important treatise on society, religion and
statecraft. It is the first work which codified the law in
ancient India and for the first time created a political
theory of a social order, government, law and justice
 Yājñavalkyasmṛti is the second most important
Dharmaśāstra text composed by Yājñavalkya himself
between first century B.C and third century A.D.
 Yājñavalkyasmṛti is the only text in the Dharmaśāstra
which is found in more organized and systematic
format through its division of Āchāras, Vyavahāras and
Prāyaśchittas
 There are numerous verses in Yajnavalkya that show
remarkable agreement with Manusmriti. But there are
several points in which Yajnavalkya differs from Manu
and shows in general more advanced state of thought
than Manu
 The most famous commentaries on Yajnavalakya’s
Smriti by Jimutvahana andVigneshwara popularly
constituting theDayabhaga and Mitakshara schools
 The followers of Mitakshara based on Vigneshwara’s
commentary are grouped together under the
Mitakshara School.
 .The followers of Dayabhaga based Jimutvahana’s
commentary are grouped together under the
Dayabhaga School.
 .
 There are two main schools: Mitakshara School
and Dayabhaga School. The Dayabhaga School is
confined to Bengal and it takes its name after the
work entitled the Dayabhaga written by
Jimutavahana.
 The Dayabhaga is, in fact, only a chapter of a larger
work of that author, but this chapter alone is now
extant.It is popular in Bengal and Assam.
 The rest of India follows the Mitakshara School
which is so called after the work entitled
Mitakshara written by Vijnaneswara as a
commentary on the Smriti of Yajnavalkya.
 The Mitakshara (which means measured words) is
regarded as authority even in Bengal in regard to
all matters on which there is no contradictory
opinion expressed in the Dayabhaga

 The Mitakshara School is usually subdivided into

four schools, namely, the Benaras School, the
Mithila School, the Maharashtra and the Dravida
School.
i) Joint Family:

 1. According to the Mitakshara a son, grandson and

great-grandson acquire by birth a right in the ancestral
property.
 2.This doctrine is the basis of the Mitakshara joint
family. According to the Dayabhaga the ownership of
the son can arise only after the death of the father.
 3. There, is no right by birth in Dayabhaga.
 4. The father has un-controlled power of
alienation over the family property under the
Dayabhaga.
 5. Under the Mitakshara the father’s power are
qualified by the son’s equal right by birth.


 (ii) Survivorship:
 1. Brothers who have inherited property from their
father have a right of survivorship in the Mitakshara
joint family.

 2. The Dayabhaga does not recognise any right of

survivorship and the brothers hold in quasi-severalty
with full power of alienation.


 (iii) Widow’s rights:
 When one of the brothers dies, his widow can succeed
to his share under the Dayabhaga
 Under the Mitakshara her rights are excluded by the
right of survivorship of the brothers. The widow can
then have only a right to maintenance.
 (iv) Sapinda: Heirship:
 The relationship of Sapinda arises according to
Mitakshara by propinquity or community of blood
 Under the Dayabhaga it arises by means of Pinda
offerings to deceased ancestors.
 Spiritual benefit is the criterion for heirship under the
Dayabhaga while consanguinity (blood relationship) is
the guiding principle under the Mitakshara.