A Term Paper on

Legal System of Nepal During Malla Period

Subject: Nepalese Legal System

CHAPTER I: INTRODUCTION
1.1 Background
The term ‘legal system’ can be used very simply to mean the sum of legal
rules, legal Institution, legal process, legal profession, legal principles and
machinery which operates within the particular country or jurisdiction. In
other words, the legal system is legal framework of the society. It is also
regarded as the subsystem of social system which includes structure,
institution and process relating to law. According to Upendra Baxi a system
of law can be conceptualized in three principal ways. First, a legal system can
be conceived as an aggregate of legal norms. Second, it can be conceived as
systems of social behavior, of roles, statutes, and institutions, as involving
patterned interactions between the makers, interpreters, breakers, enforcers,
and compliers of the norms of law. Third, legal system may be equated with
social control systems, involving differential bases of social authority and
power, different normative requirements and sanctions, and distinctive
institutional complexes. 1
The study of any legal system is also the study of its major components and
their interrelation. For A.R. Biswas, structure, substance, legal culture, and
impact are elements of legal system.2 However, legal system varies from state
to state on the basis of form of state and government, law, law-making
institutions, law interpreting bodies and law enforcing agencies. The
researcher has attempted to delineate the legal system of Nepal during Malla

1
PROF. Dr. KHUSHAL VIBUTE & FILIPOS AYNALEM, LEGAL RESEARH
METHODS, TEACHING MATERIALS, 04. (Prepared under the Sponsorship of the Justice
and legal system Research Institute, 2009)
2
https://www.ebc-india.com/lawyer/articles/87v4a5.htm
period based on some significant components (of legal system) derived from
originality and contextuality of that very period.

1
CHAPTER II: NEPALESE LEGAL SYSTEM DURING MALLA
PERIOD

2.1 Introduction to Mallas

2.1.1 Malla Period
The 'Medieval Period' is believed to have started in the history of Nepal after
the Nepal Sambat began in 936 BS. The period from 936 BS to 1825 BS
(unification of Nepal) and the period after the end of the Lichchhavi period
and prior to the fall of the Malla are known as medieval period in the history
of Nepal. In fact, the medieval period in the context of Nepal refers to 'Malla
period'. Up to some centuries of this period, Nepal stood as big as it was in
Lichchhavi period but later on it gradually fragmented into some small
independent countries in different places. At times, efforts were made for
reunification and expansion too. Therefore, the geographical status of
medieval Nepal was sometimes unified, sometime fragmented sometimes
expanded and sometimes contracted3
2.1.2. Malla Dynasty
The Mallas are believed to have started their rule since the beginning of the
13th century. Similarly, Ari Malla is regarded as the first ruler of the dynasty.
However, the Mallas were active in governance since long time ago before
Ari Malla. It is found in the Gopal royal genealogy and in some inscriptions
that the Mallas were in one or the other way were active in the governance
from one decade before Ari Malla. The Mallas are regarded as an ancient
clan. They have been described as a special class Kshetriya in the ancient
Sanskrit literature. The Mallas are referenced in the Mahabharat, different
Buddhist literature, Manusmriti and in other various Purans. The Mallas are
equally described as Kosals in the Mahabharat. The Mallas have been
compared with the Bidehas of Mithila in Markandeya Puran. Various ancient
sources have given the examples that many royal clans who had been ruling
over organized republican states in the 5th and 6th century BC later on
gradually suffered from empire expansion by monarchical states and they
made entry to Nepal. Lichchhavi, Koliya, Shakya, Malla etc, all of them had
entered Nepal as refugees. The Shakyas had lived in Lalitpur area whereas
Koliyas used to live in Kantipur (present day Keltole). Similarly, the Malls
lived in Gandaki areas in the beginning and later on some parts of the valley. 4

3
AN INTRODUCTION TO NEPAL (Nepal Parichaya),77(GoN, Department of
Information,3rd ed.2076. Ashar)
2
2.1.3 The Arrival of the Mallas in Nepal
Just as the Lichchhavis of Vaishali came to Kathmandu valley as they
couldn't stay because of the conquest of Gupta emperor of Magadh in the
north India, the Mallas with the origin from Kushinagar and its surrounding
came to the Gandaki region as refugees. Since Rajalladev and Kathaya
founded a settlement in Champagiri (Chapagaun) located in the south of
Lalitpur, it is evident that the Mallas have tried to increase their political
influence in Kathmandu. The main objective behind the attack on Malla
region by Mandev was to suppress the ambition of Mallas. When
Lichchhavis' rule began weakening in the centre, the ambition of the Mallas
to rule over the centre increased. Aridev (Ari) Malla succeeded in it. Born in
1210 BS, Aridev became the king in 1258 BS and ruled over the state for 15
years and died in 1274 BS. After Ari Malla, Abhaya Malla became the king
5
in 1274 BS. He ruled for 38 years.

2.2. Legal System During Malla Period

The Malla Period is a glorious era in the history of Nepal. Mallas developed
trade and commerce, industry, religion, culture and legal system. They
reached a high level of perfection in the fields of art and architecture. A
feudal administrative structure was imposed, dominated by an aristocratic
elite whose powers at times overshadowed those of the sovereign. Below
them, Brahmins and Chhetris monopolized all offices of profit around the
palace. Next on, the social ladder were the traders and farmers, divided into
64 strictly enforced occupational castes.6 A detail legal system during Malla
period elaborated in the following sub topic;
2.2.1 Contribution of Malla Kings in Legal System
Malla period is important for the development of art, trade, culture, law and
many other aspects. Below are some of the contributions made by some Malla
kings,
Jitamitra Malla: He established rules related to agriculture such as mutual
help in sowing crops, building irrigation channel, irrigating turn wise.
7
Violation of such rules would amount to fine.

4
Supra note 3, at 77-78.

5
Supra note 3, at 78.

6
MANI RAM GYAWALI, TERM PAPER ON NEPALESE LEGAL SYSTEM MALLA
PERIOD, (ROLL NO. 37, LLM 2nd Semester)
7
PROF. DR. BHIM DEV.BHATTA, NEPALESE ADMINISTRATION: A HISTORICAL
PERSPECTIVE, 74(Sopan Masik Publication, 2072)
3
Ranajit Malla: He Prioritized religious endowments called guthi arranged
for long-term support of traditional forms of worship or ritual by allowing
temple or vihara lands to pass down through generations of the same
8
families.
9
Siddhi Narsingha Malla: Thithi for dispute settlement.

Sri Niwas Malla: He penalized non-compliance of citizen duties when state

requires so, such as to build up fort, to build and repair bridges, to fight for
state, to pay tax etc. 10
Mahindra Malla: Commenced silver Coin named Mahindra Malli. He
prohibited gambling, and practiced dispensing of justice at local level by the
local authority called Thakali. 11
Pratap Malla: His contribution is remarkable on foreign relation, trade and
12
treaty. This opened the door for influence of other legal systems open ours.

Jayasthiti Malla: He was one of the most famous Malla kings. He has made
grade contribution in social, economic and legal reforms. He formed a
committee to codify Nyayabikasini (Manav Nayasastra) constituted by
Kritinath Upadhyaya, Rajhunath Jha, Srinath Bhatta, Ramnath Jha and Jaitu
Verma. It is the landmark document for reformation social and judicial
function. 13 It consisted four types of laws; Griha Nirnaya, Chetra Nirnaya, Jat
Nirnaya and Manav Nyayasastra.14
Nyayabikasini consists twenty-one chapters. For the convenience the chapters
15
are classified as follows;
Civil Criminal Miscellaneous

8
Id 7.

9
Id 7.

10
GYAINDRA BHD. SHRESTHA, HINDU JURISPRUDENCE NEPALESE LEGAL
SYSTEM AND COMPRATIVE LAW, 291 (Pairavi Prakashan, 5th 2072)
11
Id 10.

12
Supra note 6, at 3.

13
REWATIRAMAN KHANAL, NEPALKO KANUNI ITAGASKO RUPREKHA 42
(Sharswoti Khanal 1st ed. 2059 B.S)
14
Supra note 6, at 4.

15
Supra note 10, at 206/239/280
4
 On Bona Vacantia On Punishment On Document and Scrutiny
On Wage On Gravity of On Guarantee
offense
On Renumeration On Theft On Court Proceeding
On land On Kidnapping Rights duties and Function
of Kings
On Possession On Gambling On death rituals
On Construction of building On Marriage

On husband and wife On Rape

On Partition

On women’s share and property

On Inheritance

On debt

On General Transaction

On Donation and Gift

On Trade and Commerce

On Compensation

2.2.2 Sources of Law

Hindu theologies and Manab Nyayasastra were the main sources of law.
Likewise, Narad smriti had special influence on legal and social system.
Hindu customs and traditions were the guiding components of the entire
social system. Similarly, Royal edicts (Rajagya) and Sanads promulgated by
the kings were important sources of law. Hence the major sources of law
16
during Malla period can be stipulated as follows; -

 Religious scriptures: Hindu theologies and Manab Nyayasastra were

main source of law.
 Narad smriti had special influence.
 Hindu customs and traditions.
 Royal edicts (Rajagya)
 Sanad promulgated by the king.
2.2.3 Administration of Justice

16
Supra note 6, at 5.
5
In one of the inscriptions Prithvipal Malla has portrayed himself as a
committed justice imbued by the title ‘Dharmaraj’ 17. This signifies that king
was the apex judicial authority during Malla period. Beside five heinous
crime and cases related to state other judicial authorities where delegated to
‘Birtawar’18. Malla put the legacy of Lichchhavi in continuum regarding
administration of justice based on religious texts. Two kinds of judicial
authority were assigned at local level called ‘Dware’. The Dware who worked
as ‘Badahakim’ was called ‘Parman’ and the other who was the ruler at local
level was simply called ‘Dware’. As per the gravity of the offence the judicial
authority was assigned either to ‘Panchayat’ or to ‘Dware’. Parman would
hear the appeal. The king was the last resort regarding the finality of the case.
19

In Kathmandu valley, except the cases to local authority (Panchyat),

jurisdiction was held by Kotilinga, Itachapali or The King’s Bench as per the
nature of the case. A mobile judicial authority (Daudaha Toli) was assigned
for cases at distant places. 20
The system of taking oath by the disputants was prevalent during Malla
period. Both the parties should take oath in the name of god or ‘Kalabhairav’
located at Hanuman Dhoka. Pratap Malla revised the provision and shift
burden of taking oath to the judicial authority instead. 21
Ordeal took a significant evidential value in the judicial administration. Fire,
water, poison and balance (Tula) were the elements or/and methods of ordeal.
The accused who would pass the ordeal without any harm would suffice to be
held innocent, otherwise guilt. 22 This proves that the burden of proof lied
upon the accused unlike the general principle of criminal law.
The following courts were existent during Malla period.
a) Kotilinga: Though this court was prevalent during Malla period, there is
lack of conclusive evidence about its progenitor. Its initial jurisdiction is
not clear; however, it held the jurisdiction over both the civil and
criminal cases. Its jurisdiction was limited to civil cases following the

17
Supra note 10, at 291

18
Supra note 10, at 291.

19
Supra note 10, at 292-93.

20
Supra note 10, at 293

21
Supra note 10, at 293.

22
Supra note 10, at 293.
6
 establishment of Itachapali.23 This was also the court of appeal for the
cases decided by the local authority. 24
b) Itachapali: It held jurisdiction over five heinous crimes, viz. Homicide,
Theft, Dacoit, Killing of Cow (Gaubadh) and Crime against state
(Rajkaj). This was also the court of appeal for the cases decided by the
District administrator and Parman. Also, it was the court of first instance
for criminal cases in Kathmandu valley. 25 According to Hudson it had
jurisdiction over both civil and criminal cases.26
c) Dhansar and Takshar: It had jurisdiction over both civil and criminal
cases. But there is lack of authentic source regarding its jurisdiction.27
2.2.4 Judicial officials
We can find various judicial officials in the realm of different Malla kings.
The following officials were not existent at the same time, neither they are
exclusive to each other.
King: Was the justice giver and law enforcer. He delegated those powers to
lower authority as per his wish and authority.
Chautara: Was the general minister appointed by the king. Generally, he was
of Royal family and was powerful too. Chautara himself appointed the
Mahamatya/Mahat.
Dhurmadhikar: Were the persons who advised the kings. Dittha and Bista
were appointed to prevent and promote the temples and religious place.
Mahasamanta: Was the chief of the state who was appointed by the king.
They had full judicial power within their territory to settle disputes. Patra and
Mahatmandalika was the administrative chief.
Dware: The famous person of particular village was appointed. who
discussed about tinny disputes.
Chharidar: Was a mobile monitoring authority appointed by king who
would round over the places where illegal work had been done.

23
Supra note 10, at 295.

24
Supra note 10, at 295.

25
Supra note 10, at 295.

26
Supra note 6, at 4.

27
Supra note 10 at 296.
7
Desh Nayak: Was the authority who managed on cannel, water supply and
meadow.
Pancha Pardhan: Was a group of five gentlemen who had a power to settle
any type of dispute arisen in their areas.
2.2.5. Crime and Punishment
Some of the human conducts which is harmful to the society was criminalized
28
in the Malla period. Those crimes were as follows.

i. Blasphemy (offence against religion),

ii. Sexual offences: incest,
iii. gambling and betting
iv. Offence against property: cheating and fraud, burglary
v. Offence against human body: Homicide, assault, abuse and defamation,
misappropriation of property and
vi. offence against kings.
Above mention offences can be categories as;
I. Panchakath (Panchamahapatak): Gotrahatya, Balhatya, Shrihatya,
Guruhatya and Pritihatya were considered as panchakhat. They were
serios crimes.
II. Beside the Pancha Mahapatak, all other crimes were general crimes.
Such as Gaubadh, Sexual offences, Theft, Fraud and treason.
The Punishment system of Malla period was based on caste system and
determined by the king. The main provisions of punishment system of Malla
period is given us;
A. Physical Punishment: Corporal Punishment (Badh Danda)
B. Monetary Punishment (Arthadanda)
C. Wakdanda (Scolding) : for child delinquency)
D. Dhikdanda: Mad person were punished by Dhikdanda
E. Jatpatan (degrading to lower caste): if any person violated the tradition
and custom, he would be punished Jatpatan.
29
2.2.6 Positive aspects of legal system in Malla Period

28
SHREELAL POUDEL, A TERM PAPER, NEPALESE LEGAL SYSTEM ON MALLA
PERIOD, (LLM 2nd Year, 2068)

29
Id.28.
8
  Thitis came into the written form.
 Formal law was introduced.
 Special court concept was introduced i.e. Kotilinga and Itachapali.
 Provisions regarding the Dharmadhikari (Judicial officials)
 Introduced codified law (Manab Nyayashatra)
 Land management and court structure were best outcomes of this
period.
30
2.2.7 Negative aspects of judicial system in Malla Period

 Ordeal and corporal punishment cutting organs of human is very cruel

and unhuman.
 Punishment according to caste system.
 Unnecessary power used by the kings

30
Id.28
9
 CHAPTER III: CONCLUSION
Legal system is an interwoven part of the social fabrics. It comprises the
study of norm, institution, procedures, concepts and philosophy underlying in
the legal system of a given society. Human right and liberty can be protected
and social harmony among different interest groups and communities
maintained is the crucial role of legal system.
Mall made a remarkable contribution in Nepalese legal system. Their legal
system was based on Hindu philosophy. Various Malla kings made different
reforms in multiple aspect of legal systems such as; court system, thitis,
judicial officials, decentralized judicial services etc. However, contribution of
Jayasthiti Malla outshined all others. The first codified law
(Manabnyayasastra) was promulgated by him. It is even claimed to be the
first codified law of south Asia. A details legal system is laid down in it based
on caste system.
Very distinct court system are found in Malla period such as; Kotilinga,
Itachapali, and Dhansar and Takshar. Likewise, précised judicial designation
were assigned judicial authority at different levels, where king was the apex
judicial authority. Some of the crimes were lucidly stipulated and offence
were assigned accordingly as per their gravity. Punishment was mainly
guided by retributive theory. Physical, Monetary, Verbal, caste degradation
were the major forms of punishment. Though Malla’s legal system has been
criticized as been primitive, unscientific, superstitious, guided by religion and
caste system, but we cannot belittle significance of its relative contribution
adduced to contextuality of the society.

10
 BIBLIOGRAPHY

AN INTRODUCTION TO NEPAL (Nepal Parichaya),77(GoN, Department of

Information,3rd ed.2076. Ashar)
GYAINDRA BHD. SHRESTHA, HINDU JURISPRUDENCE NEPALESE
LEGAL SYSTEM AND COMPRATIVE LAW, (Pairavi Prakashan, 5th
2072)
https://www.ebc-india.com/lawyer/articles/87v4a5.htm
MANI RAM GYAWALI, TERM PAPER ON NEPALESE LEGAL SYSTEM
MALLA PERIOD, (ROLL NO. , LLM 2nd Semester)
PROF. DR. BHIM DEV.BHATTA, NEPALESE ADMINISTRATION: A
HISTORICAL PERSPECTIVE, (Sopan Masik Publication, 2072)
PROF. Dr. KHUSHAL VIBUTE & FILIPOS AYNALEM, LEGAL RESEARH
METHODS, TEACHING MATERIALS, (Prepared under the Sponsorship
of the Justice and legal system Research Institute, 2009)
REWATIRAMAN KHANAL, NEPALKO KANUNI ITAGASKO RUPREKHA
(Sharswoti Khanal 1st ed. 2059 B.S)
SHREELAL POUDEL, A TERM PAPER, NEPALESE LEGAL SYSTEM ON
MALLA PERIOD, (LLM 2nd Year, 2068.

11