Family Law Ii- Sources Of Hindu Law.docx

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Family Law II Project on Sources of Hindu Law

SUBMITTED BY:HERA FATIMA B.A. LLB (HONS.) 5th SEMESTER JAMIA MILLIA ISLAMIA

SUBMITTED TO:DR. KAHKASHAN Y. DANYAL

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ACKNOWLEDGEMENT Any accomplishment requires the effort of many people and same is true about this project. This project is a result of collective effort. There are innumerous helping hands behind it who have guided me on my way. First and foremost I would like to thank my Family Law professor for creating such an opportunity for the students to broaden their frame of skills. It was an interesting and informative topic and the project helped me in understanding the topic really well as well as various aspects of SOURCES OF HINDU LAW. I take an opportunity to offer my sincere thanks to Dr. Manjula Batra, Dean, Faculty of Law, Jamia Millia Islamia, who provided me the most congenial atmosphere for academic progress. I would also like to thank my friends who helped me in making this project and also the almighty.

Thanking you Hera Fatima

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CONTENTS 1) INTRODUCTION 2) SOURCES OF HINDU LAW 3) ANCIENT SOURCES OF HINDU LAW 

SRUTI

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SMRITI

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COMMENTARIES AND DIGESTS

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CUSTOM

4) MODERN SOURCES OF HINDU LAW 

EQUITY, JUSTICEW AND GOOD CONSCIENCE

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PRECEDENT

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LEGISLATION

5) CRITIQUE ON THE SOURCES 6) CONCLUSION 7) BIBLIOGRAPHY

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INTRODUCTION “Hindu law has the oldest pedigree of any known system of jurisprudence, and even now it shows no sign of decrepitude.” Henry Mayne. The phrase “source of law” has several connotations. It may be the authority which issues rules of conduct which are recognized by Courts as binding. In this context, ‘source of law’ means ‘the maker of law’. It may mean the social conditions which inspires the making of law for the governance of the conditions. In this context it means ‘cause of law’. It may also mean in its literal sense the material from which the rules and laws are known. In this sense the expression means the ‘evidence of law’ and it is in this sense that the expression ‘source of law’ is accepted in Jurisprudence. Vijnaneshwar (commentator on the Yajnavalkya Smriti and founder of Mitakshara School) has called it Jnapak Hetu i.e., the means of knowing law. It is important to study the sources of law because in every personal legal system only that rule is law which has place in its sources. A rule not laid down or not recognized in the sources is not a rule in that legal system. The word ‘Hindu’ first appeared in the Old Persian language which was derived from the Sanskrit word Sindhu, the historic local designation for the Indus River in the north-western part of the Indian subcontinent. A Hindu is an adherent of Hinduism. Hindu law is a set of personal laws governing the social conditions of Hindus (such as marriage and divorce, adoption, inheritance, minority and guardianship, family matters, etc.). It is not Hindus alone who must follow Hindu law but there are several other communities and religious denominations that are subject to its dominion such as Jains, Buddhists, Sikhs, Brahmo-Samajists, Prarthana-Samajists, the Virashaivas and Lingayats and the Santhals of Chhota Nagpur besides others. In Sir Dinshah F.Mulla’s ‘Principles of Hindu Law’, the learned editor has defined ‘Hindu law’ in the following words: “Wherever the laws of India admit operation of a personal law, the rights and obligations of a Hindu are determined by Hindu law, i.e. his traditional law, sometimes called the law of his religion, subject to the exception that any part of that law may be modified or abrogated by statute.”1 Law as understood by Hindus is a branch of dharma.

1

Mulla, Principle of Hindu Law, Vol-I, ed. Desai, S.A, 19th Ed., Lexis Nexis Butterworths, 2005.

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SOUCES OF HINDU LAW The sources of Hindu law can be classified under the following two heads:

I. Ancient Sources Under this would come the following: (i) Shruti (ii) Smriti (iii) Digests and Commentaries and (iv) Custom.

II. Modern Sources Under this head would come: (i) Justice, equity and good conscience (ii) Precedent, and (iii) Legislation.

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ANCIENT SOURCES OF HINDU LAW 1. SRUTI Hindu Law is considered to be divine, 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 Srutis i.e. “what was heard” or Vedas. The Vedas thus contain the divine revelation. The term Sruti stands for four Vedas viz the Riga, the Yajura, the Sama and the Atharva, along with their respective Brahamanas. The Brahamanas are like appendices to the Vedas which were added later on and 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 source of law and primary source of all knowledge. The importance of Sruti 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 “no statements of law as such, though their statements of law are occasionally referred to in the Smritis and Commentaries as conclusive evidence of legal usage. The Vedas contain passages alluding to the Brahma, Asura 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 the inclusion of women from inheritance.” 2 The other view is that though rules of law are not enumerated in any systematic manner in the Vedas and they are to be gathered from it’s entire body, yet it would be wrong to say that the Vedas are totally devoid of law. 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 the rich and fertile lands of Punjab and the Doab had settled down. They constituted an essentially pastoral cum agriculturist society. They had a tradition of civilised life and rich thought. The Upanisad philosophy and the Yoga systemhad not yet come into existence. These Aryans were a vigorous, robust and unsophisticated people. They were engaged in the pursuit of all that the life and the rich land could offer them. At that time two sets of rules existed: 

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Rules of Customary Law- These rules deal with rights and duties, with right and wrong, though it seems that the emphasis was more on duties and obligations than on rights. It was Dharma which was practised, and Dharma signified the privilege, duties and obligations of a man, his standard conduct as a member of the Aryan community, as a member of one of the classes (Varna) and as a person in a particular stage of life (Ashram). The Aryans invoked the law of divine wisdom by which, according to their belief, all the things on earth and heaven moved and were governed. Thus the appeal was to the

Mayne, 19.

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divine law. The Vedic Aryans believed that the soul is immortal and the body is mortal and perishable. According to them the soul of a being suffers or enjoys in the next birth in accordance with bad or good Karmas that he had done in this world. The Yajna was considered as a way of attaining salvation. To agni the Vedic Aryan offered everything that was dear to him, ghee, butter, milk, corn and cattle so that he could enjoy the life not merely in this world but in the next world also. According to them, a man could attain salvation, could return to Brahma by doing all his Vedic Karmas, by doing all his duties and by performing all his Yajnas. Thus it was karma or action which was emphasised. In sum, the Sruti depict the life of our early ancestors, their way of life, their way of thinking, their customs, their thoughts but doesn’t deal with rules of law in any systematic manner. Whatever rules of law exist, they have to be deduced from the vast material contained in the four Vedas. Kane says that the Vedas do not profess to be formal treatises on Dharma; they contain only disconnected states on various aspects of Dharma; we have to turn to Smritis for a formal and connected treatment of the topic of Dharmashastras.3

Pre-Smriti Sutras It seems that after the Vedas, the development of law through custom continued till we come to the Smritis. But our knowledge of that period is shrouded in darkness. The material available is scanty. After the Vedas there came into existence the Sutras and the Gathas. The Smritis, digests and Commentaries are full of references to the previously existing law and custom. The Sutras of Gautama and Vasistha and the Manu Smriti mention that there existed Gathas for many centuries. But the material available pertaining to that period is so scanty that it is not possible to discern any systematic picture of law. It is known that at that time a catena of Sutras was composed. But our knowledge of these Sutras is almost nil; whatever we know about them is from some references made to them in the Smritis. It is certain that a long period of transition existed from the Vedas to the Smritis. It is in this period that the Brahamanas were composed. The period immediately following the Vedas and preceding the Smritis has two main characteristics. In this period the caste system became rigid and the learning of the Vedas for the male children of the first three classes became obligatory. The Brahmans became the teacher of the Vedas. During this period, means of communication became slow. The Brahmans, who were teaching the Vedas throughout the length and breadth of India, put different constructions on the Vedas to suit the local requirements. This led to emergence of various branches (Shakhas) of the Vedas. The supremacy of the Vedas was emphasised and the people were enjoined to follow the verna dharma and the ashrama dharma. These priestly teachers formed themselves into various groups (charanas). They have their own branches (shakhas) of the Veda and laid down their own rituals and legal codes. The charanas of the Vedic period were known as Samhita Charans. These groups continued to exist during the Brahmana period. These 3

History of Dharmashastra, Vol. 1, 7.

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charans composed Sutras regarding all aspects of life, of which the Girhya Sutras, in which the duties and obligations of the Aryans as an individual and as a householder were stated, are very important. There were also the Shrauta and Dharma Sutras, together known as the Kalpa Sutras. We also find that a number of Sutra works written at about the close of the Vedic period dealt with legal injunctions and custom. The Sutra was a form in which ideals, notions and rules were trapped in a very few words, and they together constituted a string as if beads were put together on a thread. The teacher provided a link between these beads, and it was he who could expound the full meaning of the Sutras. But alas, on account of a total lack of original material, nothing beyond this could be said. In the post Vedic period, rues of Dharma, traditionally regarded to be promulgated by that hypothetical stage, Manu, who figures throughout the shastras, existed and the Sutras of that period contained aphorisms on law.

2) SMRITIS Smriti literally means “what has been remembered”. In theory the Smritis are base on the memory of the sages who were the repositories of the sacred revelation. The Smritis may be divided into early Smritis or the Dharmasutras and later Smritis or the Dharmashastras. Immediately after the Vedic period, the need of expounding the meaning contained in the Vedas arose, in the light of the needs of the society which had made a progress from agro pastoral society. There was a transition from Samhita Charanas or Sutra Charans. Of the Sutras composed during this period, some were reduced into writing. The Sutras consist of the trilogy of Shrauta (sacrifices), Grihya (ceremonies relating to domestic fire) and samayacharika i.e., aphorisms on law and custom dealing with temporal duties of men in their various relations. The Samayacharika is also known as the Dharmasutras. Dharmasutra – They were mostly written in prose, though some of them were written both in prose and verse. They generally bear the names of their authors. In some cases the Shakha or the school to which the author belonged is also indicated. The period of Dharmasutras is reckoned to be between 800 and 200 B.C. the main Dharmasutrakars are Gautama, Baudhayana, Apastamba, Harita, Vasistha and Vishnu. They deal with the duties of men in their various relations. 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. Composed in different parts of the country and at different times, they did not present any anomaly, but tended to slide into each other. Most of the Dharmashastras mingled moral and religious precepts with secular law. The autors of the Dharmashastras took the law from earlier Gathas ans Sutras and custom which had grown up bit by bit and reduced them to some order and symmetry.4 

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GautamaHe belonged to the Sama Veda school. Gautama’s Dharmasutra is considerd to be the oldest of the extant Dharmasutras. Written in

Mulla’s Hindu Law, (14th Edn.), 13.

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prose, it deals extensively with legal and religious matter and inheritance, partition and stridhan. Hardatta (12th century AD) wrote a commentary called the Mitakshara on the Gautama Dharmasutra. Baudhyana- he belonged to the Krishna Yajurveda School. The Baudhyana Dharmasutra is not available in it’s integrated form. It deals with numerous subjects, including marriage, sonship, adoption and inheritance. He also refers to customs of his region, such as custom permitting marriage with one’s maternal uncle’s daughter. He also refers to the custom of people living in the North and to the custom and excise duties. Apastamba- Apastamba Dharmasutra is the est preserved extant Sutra. He also belonged to the Krishna Yajurveda school. He very forcefully rejected certain practices like the Niyoga and Paisacha and Prajapatya forms of marriage. He also did ot recognise secondary sons, not even an adopted son. He emphasised that the Vedas were the source of all knowledge. Vasistha- he is connected with the Rigveda. He holds that the custom of the Aryavarta must be everywhere acknowledged as authoritative. Like Apastamba, he also recognises only six forms of marriage but permits the marriage of virgin widows. He holds that an assembly of ten should be constituted for settling disputes. He deals with marriage, sonship, adoption, sources of law and jurisdiction of courts. Vishnu- Vishnu Smriti is partly in aphorisic style and partly in verse. It deals with criminal law, civil law, marriage, sonship, adoption, inheritance, debt, interest, treasure, trove and various other topics. He denounces atheism and the study of irreligious books. It is closely connected with the Manu Smriti primarily and the Yajnavalkaya Smriti secondarily. Harita- Harita’s work is known as Harita Smriti. It deals with source of Dharma, Brhamacharya, snataks, prohibition about food, impurity on birth and death, duties of king, rules f statecraft, court procedure, various principles of law, duties of husband and wife, various kinds of penances, expiatory prayers and many other matters.

Other than the above mentioned Dharmasutras, there also existed Dharmasutras of Shankha, Likhita, Usanas, Hiranykesin, Kasyapa and Paiteenani. The Dharmasutras not merely propounded certain jurisprudential concepts but with their aid we are also in a position to construct ancient legal history. From them we know how early usage and custom were transformated into the rules of law. DharmashastrasThey are based on the Dharmasutras but are not metrical renditions of them. They deal with the subject matter in a very systematic manner. Most of the Dharmashastras are divided into three parts; Achara, Vyavahara and Prayasshchitta. The first deals with rules of religious observances, second with civil law and the third deals with penance or expiation. The early Smritikaras laid more emphasis on the subject matter of the first and the third parts, while the later Smritikaras have exhaustively consideredrules of positive law. Some Smritikaras like Narada deal only with civil law. In the Vyavahara part, the Smritikaras have dealt with law

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under 18 titles and 132 sub titles. They have discussed rules of both substantive law and procedural law. Of the later Smritis, those of Manu, Yajnavalkaya and Narada are the most important. 

Manu Smriti- Manu Smriti has all along considered to be the supreme authority in the entire country but the identity of the person who compiled this work remains unknown. Sometimes he is referred to as Vriddha (old) Manu, as Brihat (great) Manu and as Adi Manava (first patriarch). In the Veda, it is written that “whatever Manu says is medicine”. Manu’s pre eminent position is accepted not only by Hindu law givers but also by the Buddhist writers of Java, Siam and Burma. The Manusmriti supplied a long felt need of a legal treatise which could be a compendium of law. In a simple and clear language, easily comprehensible, it is a systematic and cogent collection of rules of law. It recasts in a systematic and easily accessible manner the whole of traditional law which was lying scattered in the Gathas and Sutras. It is a landmark in the legal history of India and is a great reservoir of concepts of law, legal rules and institutions. It also gives a vivid ideas of the customs of the then society and social and religious observations of the people. When the Manusmriti was compiled the Hindu concept of law was that the “law is the king of kings”. Manu also subscribes to the notion that the king is subordinate to the law and is merely a law enforcer. But he tries to clothe the king with the divine authority and seems to support the theory of divine rights of kings. The times when the Manusmriti was written was the time of revival of Brahmanism. The Brahmans sought the support of the king. Hindu law has all along been considered to be the divine law and it was natural to succumb to the temptation that the one who enforces the divine law should have divine authority to do so. Manu holds that danda i.e., the secular instrument in the hands of the king for the enforcement of law, alone governs the protected beings, alone protects them and watches them. Thus the punitive element behind the enforcement of law is emphasised. Manu also gives predominant position to usage and custom. He enjoins “let every one, therefore, who has due reverence of the Supreme Spirits which dwells in him, diligently and constantly observe immemorial custom.” Manu further says that while deciding a dispute a king must enquire into the custom of locality, of caste, of the guild and of the families and that it is the duty of the king to decide all cases which fall under eighteen titles of law according to the principles drawn from local usage and from the sacred law. Sadachara is defined as the custom handed down in regular succession from time immemorial, among the four chief castes and the mixed races of the country. Manu being the protagonist to Brahmanical revival preached orthodox doctrines. He is particularly harsh to women and sudras. He supports the dominant position of the Brahamanas in the society. On the Manusmriti several commentaries have been written. The important ones are Kulluka’s Manvarthamuktavali, Medhatithi’s Manubhashya and Govindraja’s Manutika.

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Yajnavalkaya Smriti- In date and authority, the Yajnavalkaya Smriti comes after the Manusmriti.it is substantially based on the Manusmriti, though it is more synthesised

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and logical. It belonged to the Sukla Yajurveda and is closely connected with the Brihadaranyak Upanishad. It is divided into three sections. Almost all subjects found in the Manusmriti are dealt with by Yajnavalkaya in precise manner. Yajnavalkaya Smriti deals with rules of procedural law in detail. Yet the law of procedure is not bogged down in arid technicalities. The approximate date of the Yajnavalkaya Smriti is the beginning of the Christian Era. It does not subscribe to the theory of divine right of the king. According to him, the king is subordinate to the law. He enjoins on the king to be modest, even minded and righteous, todevote himself to the service of people and to look after the administration of justice. On the other hand, he holds the view that no one, whether a son, a brother or preceptor can escape the punishment of the king, if he deviates from the performance of his own duties.5 Thus Yajnavalkaya strongly favours the power of the danda that the king uses to enforce law. Yet he does not want to clothe him with any divine authority to rule. He also attaches importance tocustom. He says, “One should not practise that which, though ordained y the Smriti, is condemned by the people”.6 There are many passages in the Yajnavalkaya Smriti which show a remarkable agreement with Manu yet there are several points on which it differs from Manu and shows in general a mere advanced state of thought and feeling than Manu. He takes a liberal view on women and sudras and on the women’s right to hold or inherit property. He takes a liberal view on criminal penalties. Probably there was some unseen influence of the enlightened philosophy of Buddhism. Several commentaries have been written on Yajnavalkaya of which those by Visvarupe, Vijnaneshwara, Apararka and Shulapani are the most famous ones. On account of the paramount importance of the Vijnaneshwara’s commentary, the Mitakshara, the Yajnavalkaya Smriti indirectly became very important in Hindu law. 

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Narada Smriti- The Narada Smriti is the last of the three metrical Dharmashastras whose complete text is available to us. The approximate date of the work is 200 A.D. this is the first legal code which is free from moral and religious feelings. It deals only with Vyavahara and not with Achara and Prayaschitta. It deals with law of procedure and pleadings in detail and with remarkable clarity. It is no less elaborate on the ruler of substantive law. The work is divided into two parts. The first part deals with judicature and the second part deals with eighteen titles of law. The most remarkable feature of this work is that it is a very systematic and exhaustive treatise on rules of law. Narada doesn’t hesitate in differing from his predecessors. He formulates new rules which come into existence on account of social, economic and political changes of his times. At the time when the Naradasmriti was composed, the powerful maurya dynasty was established throughout the Aryavarta; one powerful king followed another. The need of the empire required that the king should have some law making power. The Naradasmriti is therefore first of the Dharmashastras which recognises not merely the king’s power

Yajnavalkaya Smriti, I, 358. Yajnavalkaya Smriti, I, 156.

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of making law (Rajyasasna or Rajyaadesh) but also that the law made by the king overrides the sacred law and custom. However, he doesn’t sanction unlimited law making power to the king. Narada holds the view, “be whatever, the king is to be obeyed”. He confers adequate powrs on the king to punish the offenders. Narada says that, “custom decides everything and overrules the sacred law.” As compared to other sages, Narada is a progressive sage. He confers rights on women to hold and inherit property. He is not as harsh to sudras as Manu is. He also recognises that in certain circumstances a woman can leave her husband and take another. He condemned usury. Usurer is one who lends money at a very high interest. The Narada Bhashya is a well known commentary by Ashaya on the Naradasmriti. There are other Smritis also but these are not available to us in their entirety. Among them mention may be made of the Smritis of Parasara, Brihaspati and Katyayana. There are others about which we know only from digests and commentaries. Of these Smritis, important ones are of Vyasa, Samvarta and Devala. We can deduce the following rules of interpretation from the Smritis: a) It is an established rule that no conflict should be admitted where it is possible to reconcile two texts. In such a case there is o real conflict, it is an apparent or superfluous conflict. b) The apparent conflict may be resolved by the rule that the less favoured text is nothing but a statement of fact and does not embody any rule of law. c) Where the conflict was patent and the texts are irreconcilable the rule is that one has the option to prefer any one of them. But it seems that this rule of interpretation is applied only to Achara and Prayaschitta and not to Vyavahara. d) The most satisfactory rule of interpretation is that where there is a conflict between two Smriti texts, preference should be given toone which is in accordance with the equity, justice and reason. Yajnavalkaya and Narada favour the application of this rule to vyavahara also. e) Another method of reconciling the conflict is to hold that certain rules in Smritis became obsolete being disapproved by the people at large. Narada expressed rule by saying that, ‘custom is powerful and overrides the sacred law’. This rule came to be established in Hindu law during the British period: a rule of sacred law can be abrogated by evidence of custom in derogation of it. f) One reason of apparent conflict in Smritis seems to be that sometimes it is overlooked that the smritis at first state the opposite view (purvapaksha) and then give reason against it and finally state the principle or the rule (siddhanta). This was also responsible for finding more conflict into the Smritis than in reality there was. The commentators and digest writers could not recognize this to avoid the conflict as they were wedded to the traditional view that every text in the Smritis was valid. But compelled by the necessity of reconciling this conflict, they adopted another mode. They made a distinction between vidhi (injunction) and arthavada (explanatory material). This is the rule of the Purva Mamansa and it is also adopted by Jaimini. It was by this technique that the commentators and digest writers tried to avoid

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inappropriate rules. Whatever text they considered to be inappropriate, they interpreted it in a manner as to appear to contain only explanatory material. This method of discussion, what is binding and what is not, by holding one as vidhi and holding another text as containing arthavada, was further fortified by another rule of interpretation, viz., if a rule was stated without a reason in the Smritis, the rule was merely arthavada and if a rule was stated with accompanying reasons, it was vidhi. g) The Kalivarjya theory is developed as an interesting instrument to avoid certain conflict and to hold certain text as not binding. This theory holds the view that certain rules laid down in the Smritis became obsolete and were to be avoided in the Kali age- Kalivarjya. h) Another theory, of Laka Vivista, i.e., intolerable to the public, is also utilised to hold certain text as not binding. Yajnavalkaya said, “one should not practise that which abhorred by public, though it be sactioned in the law, since it leads not to heaven.” Manu also expressed similar views. The Mimansa rules of interpretation were developed to expound the meaning of the Vedas particularly of the ritual portions. Jamini’s Mimansa is mainly a critical commentary on the ritual portions of the Vedas. It provides for the interpretation of the rituals and the solution of doubts and discrepancies in regard to the vedic text caused by the discordant explanations of opposite schools. It mostly uses the logical method. Jamini propounded the literal construction as the cardinal method of interpretation; he also laid down someclear and logical rules which permitted departure from the literal construction. The Mimansa rules lay down that where individual interpretation is not fettered by mandatory rule, the judge has the freedom to accept that construction which is supportable solely by the reason of law. Colebrooke very ertinently said, “the logic of the Mimansa is the logic of law”. The fact of the matter is that the Mimansa contains many rules of interpretation which are common to most system of law, such as that a special rule prevails over the general, that where there is an exception to a general rule, the exception should be confined within the strict limits, that the masculine includes the feminine, that the greater includes the lesser and the singular includes the plural. The Mimansa contains some special rules of interpretation which are peculiar to it, with the result that by same rules of interpretation the commentators have come to opposite conclusions. For instance, on the question whether property is temporal or spiritual, Vijnaneshwara came to the conclusion that it is by poular recognition, while Jimutvahana reached the opposite conclusion. Jamini applied his rules of interpretation only to the ritual portion of the Vedas. The question whether they apply to the Vyavahara portion has been a subject of debate among scholars. There is no doubt that they have been used by the commentators and the digest writers in interpreting the vyavahara portion of the Smritis and in reconciling the conflicting Smriti texts. The doctrine, factum valet quod fiery non debet factum valet, which means “what ought not to be done is valid when done”, is ascribed to Jamini. Jimutavahana has given expressionto this doctrine in the following words, “a fact cannot be altered by hundred texts.” In the administration of Hindu law, this doctrine has been applied by the courts both to textual law

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and customary law, and recently a view has been expressed that it applies to statutory law as well.7 Jimutvahana applied this doctrine to Smriti rules which prohibits a father from alienating his self acquired immovable property without the consent of his sons by saying that though such an aloenation is prohibited, but if made, it will be valid, as hundred texts cannot alter a fact. The Indian Court applied the doctrine to the following two cases: a) When the objection to an act or transaction is merely on , moral and religious grounds, and b) To those acts and transactions which are though prohibited by texts are not rendered invalid. The doctrine does not apply to an act which is void in law, as an act or transaction which is void in law cannot be rendered valid by the application of the doctrine. 8 The doctrine has no application to the statutory law.

3)DIGEST AND COMMENTARIES The need for further analysis, systemisation and assimilation of law was satisfied by the commentators and digest writers. The commentaries and digests cover a period of about one thousand years from 700 A.D. to 1700 A.D. The last of the commentaries is by Nanda Pandit on the Vishnu Dharmasutra called the Vaijayanti, written in the 17th century. Till the 12th century, we find that 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. The authors of the commentaries and digests assumed that the Smritis constitute a single body of law, one part of which supplant the other; every part of which, if properly understood, is capable of being reconciled with the other. They modified and supplemented rules in the Smritis, in parts by means of their own reasoning and in part in the light of usages that had grown up.9 In the apt words of Mr. Justice Desai, “if the productive era of the Dharmashastras was the golden age of Hindu law, this was the period of critical inquiry, expansion and consolidation.”10 The Privy Council said, “the commentaries, while professing to interpret the law as laid down in the Smritis, introduced changes in order bring it into harmony with usage followed by the people governed by the law: and that it is the opinion of the commentators which prevails in the provinces where their authority is recognised. In the event of a conflict between the ancient text writers and the commentators, the opinion of the latter must be accepted.” It is noteworthy that apart from some who wrote their works under the patronage of kings or at their instance, most of the commentators worked of their own without claiming any 7

Introduction to Modern Hindu aw, paras 139,211,213,215,216. Lallan V. Gohri, 1972 All. 540 (Adoption ceremony of giving and taking is mandatory). 9 Mayne, (11th Edn.,) 40. 10 Mulla, Hindu Law, (14th Edn.,) 41. 8

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authority, delegated or otherwise. Yet, their works assumed paramount importance, such was the excellence attained by them.11 COMMENTARIES ON MANUSMRITI

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Medhatithi- the approximate date of this commentary is 825-900 A.D. this is earliest extant commentary on the Manusmriti. On the whole, Medhatithi’s comments are dependable and instructive, although at times he engages in caustic subtlety. Most of his broad propositions are the result of his reflective generalisation. He is perfect master of the Mimansa rules, and his legal acumen is admirable. At times, he resorts to general propositions and exposes himself to the attack of begging the question. The name of his commentary is the Manubhashya. Govindaraja- the Manutika of Govindaraja was written in 11th or 12th century A.D. According to Dr. Jolly the work is very useful for the interpretation of the text as it contains a full paraphrase of the text and is marked by conciseness of expression and philological accuracy.12 Mr. Justice Desai says: “there is not much subtlety in the work though there is depth. He is particularly analytical and pedestrian but sound in his exposition.”13 Kulluka Bhatta- The Manvarthamuktavali by Kulluka is the most famous of all commentaries on Manu. According to Kane, “Kulluka’s commentary is concise and lucid and remarks are always to the point. He avoids all unnecessary discussion and is never prolix. He was however, not original. He drew upon the commentaries of Medhatithi and Govindaraja and incorporated a great deal fromthem into his work without acknowledgement.”14 He frequently pours ridicules on Govindaraja and is critical on him and Medhatithi. Kulluka’s exposition on the whole is better than the involved commentaries of others.15 It cannot be gainsaid that he was a legist of the first rank. His forte was an ability to reduce difficult rules to the simplest language. There is no obscurity about his style. Though a master of his subject, he is not altogether free from sophistry in his reasoning.16 According to Kane, his work belongs to about 1250 A.D.

Asahaya and Vishnusvamin also wrote commentaries on the Manusmriti but they are not available to us.

11

Atma Ram V. Baji Rao (1935) 62 I.A. 139 at 143. Jolly L. & C. 66. 13 Mulla (14th Edn.), 22. 14 Kane, 359-60. 15 Mayne, (11th Edn), 42. 16 Mulla (14th Edn) 22. 12

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COMMENTARIES ON YAJNAVALKAYA SMRITI

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Visvarupa- Visvarupa commentary named as Balakrida is the earliest commentary on the Yajnavalkaya Smriti and belongs to 9th Century A.D. According to Kane, “the style of Visvarupa is simple and forcible and resembles that of the great Sankaracharya. He quotes profusely from the Vedic works, the Brahamanas and the Upanisads. His work is thoroughly saturated with the love of the Purvamimansa. He quotes Jamini by name. Throughout his work he relies upon mimansa maxims and methods of discussion. In his philosophical view he is most akin to Sinkara.”17 Visvarupa’s commentary on the achara and the prayaschitta are voluminous. Vijnaneshwara- of all the commentaries, Vijnaneshwara’s commentary the Mitakshara is by far the most important and the most outstanding one. The age of the work is considered to be the laer part of the 11th century. Vijnaneshwara belonged to South India (Andhra Pradesh). “This far seeing jurist and statesman by practically freeing Hindu law from its religious fetters and making it readily acceptable to all communities in all parts of India, established it on new foundation.” Mitakshara has been accepted throughout the country, except in Bengal, as the highest authority, and even in Bengal it is of high authority, only yielding to Dayabhaga on those points where they differ. The Mitakshara, according to Kane, “represents the essence of the Dharmashastra speculation that preceded it for about two thousand years and it became the fountainhead from which flowed fresh streams of exegesis and development...The Mitakshara is not only a commentary explanatory of the verses of Yajnavalkaya, but it is in the nature of a digest of Smriti material. It brings together numerous Smriti passages, explains away contradictions among them by following the rules of interpretation laid down in the Purvamimansa system, brings about order by assigning to various dicta their proper scope and province and effects a synthesis of apparently disconnected Smriti injunction.”18 The word Mitakshara literally means ‘a few words’. It is generally concise and to the point. The jurist has meant his work to be a synthesis of Smriti texts and therefore whenever he has felt the need, he has expanded his commentary to enormous length. Such has been the importance of the Mitakshara that several commentaries have been written on it. The most famous of these are by Visvesvara, Nandapandita and Balabhatta. Kane places the Mitakshara at between 1100-1120 A.D.19 Apararka- Aparaditya is another important commentary on the Yajnavalkaya Smriti written in the 12th Century A.D. by apararka. His work is of paramount authority in Kashmir. Apararka’s work is not a mere commentary but it is in the nature of a digsest. It is far more voluminous than the Mitakshara. It is said “apararka is much inferior to the Mitakshara in lucid exposition, in dialectic skill, in subtlety of argument, in ordered presentation of heterogeneous material.”20

Kane, 253. Kane, 287-88. 19 Kane, (2nd Edn) 607. 20 Kane, 339. 18

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Mitra Mishra- Mitra Mishra wrote commentary on Yajnavalkaya and also a separate treatise. Both of them are known as the Viramitrodaya. He closely follows the Mitakshara and throughout the Miktakshara jurisdiction the authority of the Viramitrodaya is high. The work was probably composed between 1610-1640 A.D. The author has handled the subject competently with a wealth of learning, with great attention to detail and a careful consideration of the opposite view. Mitra Mishra’s digest is the bulkiest known work on the Dharmashastra and covers all branches of the Viramitrodaya. The Viramitrodaya deals with some of the points which were left doubtful by Vijnaneshwara. This work supplements many gaps and omissions in the earlier commentaries and illustrates and elucidates with logical preciseness the meaning of doubtful prescriptions. It is declaratory of the law of the Benares school.

REGIONAL AUTHORITIES

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The South Indian Authorities- The authority of the Mitakshara in various parts of the country is supplemented by some local works. Of these the Smriti Chandrika by Devannabhatta, the Parasara Madhviya by Madhavacharya, the Sarasvativilasa by Prataparudradeva, the Vyavaharanirnaya by Varadaraja and the Smriti Muktaphala by Vaidyanatha are important. The Smriti Chandrfika dates about 1200 A.D. The work is remarkable in its originality and it is an extensive digest on the Dharmashastra. In South India, in authority it is next to Mitakshara. According to Mayne the authority of the Smriti Chandrika must be confined to questions where the Mitakshara is silent and the reasoning of the Smriti Chandrika is consistent with the rules in the Mitakshara.21 The Parasaramadhaviya was composed between 1330-38 A.D. Its author was the Prime Minister of the Kings of Vijayanagara dynasty. He bwas also the pontiff of the famous mutt at Srinegri in Mysore state. Kane says: “Madhavachara is the brightest star in the galaxy of Daksinatya authors on the Dharmashastra. His fame stands only second to that of the great Shankaracharya.”22 His style is lucid and he generally avoids lengthy and abstruse discussions. The West Indian Authorities- The important authorities of the West India are the Vyavahara Mukha by Nilakanthabhatta, the Viamitrodaya by Mitra Mishra and the Samaskara Kaustubha by Anatadeva. These authorities supplement the Mitakshara. Of these, the Vyavahara Mukha is the most important. In Maharashtra, Northern Kanara and Ratnagiri, the Mitakshara is of paramount authority but in Gujarat, on the Island of Bombay and in North Konkan its authority is subject to the Mayukha. The general rule construction is to con strue both as to harmonise them and whenever and so far as it is reasonably possible; but where it is not possible to do so, the Mayukha prevails over the Mitakshara. The work was composed in the beginning of the 17th century. Nilankanthabhatta generally takes a practical view of things and does not

Mayjne (11th Edn.), 47. Kane, 374.

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indulge in unnecessary discussion. He is the founder of the Maratha school. The Viramitrodaya by Mitra Mishra is also an authority in West India. Mithila Authorities- The Vivada Chintamani, the Vivada Ratnakara and the Madana Parijata are the well known authorities in Mithila. In Mithila the authority of the Mitakshara is supreme in all matters except a few. The Vivada Chintamani written by Vachaspati in the 15th Century under the patronage of King Bhairavendra of Mithila is treated as the highest authority in Mithila. It is a digest of unquestioned merit. Vachaspati was a prolific writer and appears to have written a number of books. His eleven works bearing the title ‘Chintamani’ have come to light. Vachaspati has also written on philosophy. He is also the author of Vyavahara Chintamani. The Vivada Ratnakara by Cnadesvara, a work of the beginning of the 14th century, the Vivada Chandra of Mitramishra written under the order of Princess Lakshmi Devi of Mithila, and the Madanaparijata written by Vishveswara Bhatta in about 1360-1370 A.D., are also important works in Mithila. The last work deal with civil and religious duties and also with inheritance. It is a digest. Written in simple language, it is lucid in style. Vishveshvara Bhatta has also written a commentary on the Mitakshara by the name of the Subodhini. Benares Authorities- The Viramitrodaya is an authority in Benares. The Nirnaya Sindhu and the Vivadatandava are the other important authorities in Benares. The Vivadatandava is a work on the law of inheritance. Its author, the Kamalakara, is considered to be a great jurist. Both of his works, the Nirnaya Sindhu and the Vivadatandava, have weight in the entire Mitakshara jurisdiction, whenever they are not in conflict with the Mitakshara. Nanda Pandita’s Vaijayanti is one of the leading authorities in Benares. Bengal Authorities- In Bengal Jimutvahana’s Dayabhaga is a supreme authority on all matters on which it is in conflict with the Mitakshara. According to Sarkar Sastri and Kane the work was composed in the 11th century, or the beginning of the 12th century A.D. Mayne places it in the 13th Century, while Dr. Jolly in the 15th century A.D. It is a digest. Jimutvahana was a jurist and probably also a minister in the court of a Bengal ruler. The Dayabhaga mainly deals with inheritance and partition. The other works of Jimutvahana which have come into light are the Kalaviveka and the Vyavaharamatrika. It seems all the three works were a part of a larger work on the Dharmashastra called the Dharmaratna. The Kalaviveka deals with the topic of proper times for religious duties. The vyavaharamatrika deals with the judicial procedure and 18 titles of law. The third work, the Dayabhaga is a paramount authority in Bengal on matters like inheritance, partition, stridhan etc. the appeal of Jimutvahana is to reason and stern logic rather than to precedent and precepts. His approach is direct and straight forward. He plunges, in the words of Justice Desai, in medias res and is at heart of the subject. Much can be learnt from this builde of a great deifice whose radical turn of mind made him hunt back constantly to dig up a variety of standpoints and examine roots.23 Such has been the paramount position of Jimutvahana that in Bengal, his views have not been questioned, except in minor details. There are several

Mulla (13th Edn), 57.

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commentaries on the Dayabhaga. The most famous is by Raghunandana. His encyclopaedic work on different branches of the Dhafmashastras is known as the Smrititattva. It is divided into 28 sections. His wonderful mastery over the Smriti material and the erudition displayed in the Smrititattva earned for him the appellation, Smartashastracharya from the later writers.24 The work closely follows Dayabhaga and also refers to the Mitakshara, with a view to reconcile both the systems, he says that succession is to be determined by proximity of birth as well as religious efficacy. Raghunandana is an acknowledged authority in Bengal and he is next to Jimutvahana. Srinath Acharya Chudamani and Sri Krishna Tarkalankara are other exponents of the Dayabhaga law. SPECIAL AUTHORITIES On Adoption- the Dattaka Mimansa and the Dattaka Chandrika are the works devoted to adoption. Nandapandita has also written several other works but his most celebrated work is the Dattaka Mimansa. The author deals with the following subjects: who may adopt; when adoption can be made; who can give in adoption; who may be adopted; ceremonies necessary for adoption; motives behind adoption and consequences of adoption. Speaking of both works, the Privy Council said: “again of the Dattaka Mimansa of Nandapandita and the Dattaka Chandrika of Devannabhatta, two treatises on the particular subject of adoption, Sir William Macnaughten says that they are respected all over India; but that when they differ, the doctrine of the latter is adhered to in Bengal and by the Southern jurists while the former is held to be the authority in the province of Mithila and Benares.” 25 In Ram Chandra V. Gopal26 the court said that the Dattak’s Mimansa must be accepted except where it can be shown that it deviates from or adds to the Smriti or where its version of the law is opposed to such established custom as the courts recognise. Some of the views expressed by Nandapandita have been rejected by the courts. According to him, the widow cannot adopt, but, except in Mithila, this is not the position. He said that borther’s son must be preferred in adoption, this is treated as a mere recommendation. On Religious and Ceemonial Law- Kamalkar Bhatta’s Ninaya Sindhu composed in about 1610-1940 A.D. is considered as an authority throughout India on religious and ceremonial law. In its enumeration of persons entitled to offer sraddha, the author incidentally throws light on succession. Kamalkar Bhatta is the author of more than 22 works. Of these, the Ninaya Sindhu, the Sutra Kamalkara and the Vivadandava are the famous works. The first of these is a monument of erudition, industry and lucidity. 27 It is divided into three paricchedas. Some of the topics are: proper times for various religious acts, the various views about the year being solar, lunar etc., months of four kinds, Samkranti rites and gifts, various vratas and festivals in the year, the Samaskaras for garbhadhana, sapinda relationship, consecration of images, auspicious times for various actions, such as for sowing oerations, etc., sraddha and various rights at birth, after death, on death, rites for sati, sanyasa, etc. Kasinath’s 24

Kane, 416. Collector of Madras V. Mootoo Ramalinga, 12 M.I.A. 397 at 437. 26 Bom. 619 at 624. 27 History of Dharmashastras, Vol. 1, 436. 25

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Dharmasindhu composed in 1790 A.D. is an authoritative work on ceremonial matters. It is held in high respect and it is a work of repute in Benares. Vaidyanath Dikshita’s Smriti Muktaphala and Tholapa’s Suddhi Vilochana are also authorities on ceremonial matters and are frequently consulted in Tamilnadu. Of the recent works, mention should be made of Jagannath’s Vivadabhangarnava, compiled at the request of Sir William Jones and translated by Cole Brooke. The main topics dealt with in this work are recovery of debts, deposits, sale without ownership, partnership, rescission of gifts, non payment of wages, rescission of sale and purchase, emancipation from slavery, disputes between master and servant, duties of man and wife, inheritance and partition. The work has no binding authority in Western India. According to Justice Mitter Jagannath Tarkapanchanana was one of the most learned pundits the Bengal had ever produced and whose authority on questions of Hindu Law ranks only next to Jimutvahana, Raghunanadana and Shri Krishna.28 Mention also must be made of Vyavastha Chandrika, a digest on the Mitakshara and Vyavastha Dayabhaga, a digest on the Dayabhaga, two great scholarly works, by Vidhya Bhushan Shama Charan Sarkar who occupied the chair of Tagore Law Professor in the Calcutta University.

4)CUSTOM After the law was reduced into writing by the Smritikars, the process of legal development was carried on by the Digest and commentaries. The digest writers and commentators in their turn further incorporated the existing custom. In this process, some of the customs of the times were incorporated into the rules. But this incorporation was not always a faithful translation of customary rules into principles of law. The customary rules were modified to suit the needs of the time and also to suit the philosophy of the times. Yet, neither the Smritikaras nor the digest writers and the commentators ever claimed to incorporate custom. They specifically left an area open to custom by saying that the King should decide a dispute in accordance with custom. They said that the four legs of law were Dharma, Vyavahara, Charitra (custom) and Rajya Shasna (royal ordinance or king made law) and the latter prevailed over the preceding. At the lower rung of judicial administration disputes were mostly decided on the basis of custom. But at the lower rung, the fundamental tenets of the Shastra seldom came into conflict with custom.

ORIGIN AND NATURE OF CUSTOMWhen human beings came to live in groups, it was but natural that they should, for harmonious group life, conform to certain patterns of human behaviour. By experience man learnt that a particular mode of behaviour or conduct was conducive to collective living. In coursed of time a pattern of behaviour emerged, and by consistent adherence to it, it achieved spontaneous and conscious following by the members of the group. When this stage is reached the pattern of human behaviour is called usage. As Mayne puts it “a belief in the 28

Kerri V. Monik Ram, 13 B.L. R. 1.

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propriety or the imperative nature of a particular course of conduct, produces a uniformity of behaviour in following it; and a uniformity of behaviour in following a particular course of conduct produces a belief that it is imperative or proper to do so. When from either cause or from both causes, a uniform or persistent usage has moulded the life and regulated the dealing of a particular class or community, it becomes a custom.”29 In the modern law, before a custom can be enforced by a court it is necessary to prove the existence of custom. For a custom to receive recognition it is necessary that it should be ancient and invariable, it should be established by unambiguous evidence, and it should be continuous, certain and ancient.30

REQUIREMENTS OF A VALID CUSTOM

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Custom should be ancient- The word ancient means that it belongs to antiquity. According to Hindu Marriage Act,1955, it should be observed for a ‘long time’. In India custom need not be immemorial in the English law sense. The courts have time and again expressed an opinion that if a custom is established to be 100 years old or more, it is of sufficient antiquity to be called ancient. The Privy Council observed that it is not the essence of this rule that its antiquity in every case be carried back to a period beyond the memory of man- still less that it is ancient in the English technical sense. It will depend upon the circumstances of each case what antiquity must be established before the custom can be accepted. What is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has by common consent been accepted as the governing rule.31 A custom cannot come into existence by agreement. Similarly no new custom can be recognised. In two recent cases before the Madras High Court the question was: whether a group or organisation was free to lay down new ceremonies of marriages? In these cases, “the self respecters’s cult” in Tamilnadu state organised a movement under which traditional ceremonies were substituted by simple ceremonies. The basic idea was to abandon the Brahamanical or Shartric ceremonies of marriage. The first such marriage took place in 1925. In the first case, which came in 1954 the main question before the court was: could this ceremony be considered as established by custom? The court said that 25 years is not a sufficiently long period to elevate a practice to the rank of custom.32 In the second case which came in 1966 the court said that it was a different matter as to how much time should pass to enable a practice to gain judicial recognition as custom, but no useful purpose could be served by reformers by merely presiding over such marriages and conducting the ceremonies according to their own ideas unmindful whether such things are valid in law. The court was of the view that in modern times, no one is free to create a law or custom; that it is the function of legislature.33

Hindu law and Usage 63-64. Rani Lakshmi Sivakala (1872) 14 M.I.A. 585; Rabindra V. State, 1969. 31 Mt. Subhani V. Nawab, (1941) Lah. 134. 32 Deivana Achi V. Chidambara, 1954 Mad. 657. 33 Rajothi V. Selliah (1966) M.L.J. 46. 30

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Custom should be continuous- Suppose it is established that custom has an antiquity of 400 years, but it has not been followed since then, it may be sufficient indication of its abandonment. The Privy Council observed “their Lordships cannot find any principle or authority, for holding that a point of law a manner of descent of an ordinary estate, depending solely on family usage may not be discontinued, so as to let in the ordinary law of succession. It is of the essence of family usages that they should be certain invariable and continuous and well established. Discontinuance must be held to destroy them.”34 Such discontinuance may be intentional or accidental. It should be certain- Mere vague allegations as to the existence of custom will not suffice. One who alleges a custom must exactly show what the custom is and how far it is applicable or relevant to the matter at issue. It should not be unreasonable- An unreasonable custom is void, although it cannot be said that custom is always founded on person. No amount of reason can make a custom. What is reasonable or unreasonable is a matter of social values. It may differ from time to time, form place to place. Therefore, whether a custom is reasonable or not is determined by the contemporary values of every society, though there are certain rules or practices which are considered unreasonable in all times and in all societies. It should not be immoral- Like the standard of reasonability, the standard of morality may vary from time to time and from society to society, custom which is immoral is void. Thus it has been held that an alleged custom permitting a woman to leave her husband and to remarry without his consent, or a custom permitting a husband to pronounce divorce on payment of a sum of money to the wife without her consent, or custom under which adoptive parents pay a sum of money to the natural parents at the time of adoption, or a custom under which the trustees of a religious institution is allowed to sell their trust is void being against morality.35 Custom must not be opposed to public policy- A custom which is opposed to public policy is void. Thus a custom among dancing girls permitting them to adopt one or more daughters has been held to be void being opposed to morality and public policy.36 Similarly a custom permitting the trustees of a religious endowment to sell the trust has been held to be contrary to public policy.37 It must not be opposed to law- Here by being opposed to law, it is meant statutory law.38 A custom opposed to sacred law prevails, but no custom opposed to statutory law can be given effect. The codified Hindu law has abrogated custom except in a few cases where it has been expressly saved.

Rajkishen V. Ramjoy (1876) 1 Cal. 186. Raja Vurmaha V. Ravi Vurmada (1974) 4 I.A. 76. 36 Mathur V. Esa (1883) 4 Bom. 545. 37 Raja V. Ravi (1876) 44 I.A. 76. 38 P. Latchmanna V. Appalaswamy, 1961. A.P. 55.; Parkash V. Pameshwari, 1987 P. &. H. 37. 35

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PROOF OF CUSTOM- The burden of proving a custom is on the party who alleges it. There are certain customs of which the court will take judicial notice: when a custom is repeatedly brought to the notice of the court, the court may hold the custom proved without any necessity of fresh proof,39 otherwise all customs are to be proved like any other fact. Custom cannot be extended by analogy.40 Usually custom is proved by instances. How many instances need be proved, no hard and fast rule can be laid down. A custom can be proved otherwise also. For instance, a proof of conduct of members of the caste or locality which could be explained only on the basis of custom will be sufficient. 41 Record of custom such as riwaj-i-am can be used for proving a custom. The riwaj-i-am is a public record prepared by a public officer in the discharge of his duties under government rules. The statement contained in riwaj-i-am may be accepted even if unsupported by instances. But proof of custom by such records is subject to rebuttal. Certain manuals and books can also be used as record of custom. But such manuals and digests should be used with caution. KINDS OF CUSTOMthe smritikars mentioned four types of customs; local custom, custom of caste or community, family custom and guild custom. The guild custom i.e., custom of traders and merchants is not a part of personal law of Hindus. Here we are only concerned with first three types of customs. 

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Local custom- a local custom is a custom which prevails in a locality, in a geographical area, not necessarily confined to an administrative division or district and is binding on all persons in the area within which it prevails. The Privy Council observed in Mst Subbane V. Nawab42 : “it is undoubted that a custom observed in a particular district derives its force from the fact that it has, from long usage obtained in that district the force of law”. Family custom- family custom is binding only on the members of the family. As early as 1868, the privy council said that custom binding only on members of family has been long recognised as Hindu law43. A family custom different from the law or custom of the locality in which the family is living can be proved and is enforceable. A family custom can be more easily abandoned than a local custom. Impartible estate and succession by the rule of primogeniture are two examples of family custom. Caste or community custom- by far the largest area of custom in personal law of Hindus is covered by caste or community custom. It is binding on all the members of the caste or community, wherever they may be. Most of the Punjab customary law is of this nature.

39

Ujagar V. Jeo 1959 S.C. 1041; Munnalal V. Rajkumar, 1972 S.C. 1193; but see Kalimma V. Janarthana, 1973 S.C. 1134: if earlier decisions are not based on evidence then they cannot be relied on (case law reviewed). 40 Saraswati V. Jagdammbal, 1953 S.C.201 41 Ahmed V. Chenni 1925, 52 I.A. 379. 42 43

Soorendranath V. Heeramonee 12 MIA 91.

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MODERN SOURCES OF HINDU LAW 1. EQUITY, JUSTICE AND GOOD CONSCIENCE The ancient Hindu law had its own version of doctrine of equity, justice and good conscience. According to Gautama, “in cases for which no rule is given, that course must be followed of which at least ten persons who are well instructed, skilled in reasoning and free from covetousness approve”.44 According to Brihaspati, “no decision should be made merely exclusively according to the letter of the Shastra, for in a decision devoid of a yukti, failure of justice occurs.”45 Yajnavalkaya said that when on a matter there were conflicting rules of law, the matter should be decided on the basis of Nyaya (natural equity and justice). Katyayana also said that whatever is inconsistent with equity and justice, that be avoided. In his mimansa, Jamini propounded the doctrine of aridesha i.e., where a principle has been laid down with reference to a case it could be applied to analogous cases. Thus it seems that Nyaya and Yukti were used merely not to fill the lacunae in the sacred law but also to overrule sacred law whenever it is found to be irksome or against conscience. The principles of nyaya and yukti were used to mitigate the rigour of law. In the words of Mr. Justice Desai, “it does appear that the unified legal system arrived at by the Smritikaras envisages a department oraspect of law which would permit, within limit, interpretation of the sacred texts by resorting to something akin to what the modern lawyer at time does when he appeals to the equity of the statute.”46 In this modern version, the equity, justice and good conscience as a source of law owes its origin to the beginning of the British administration of justice in India. The Charters of the several high courts established by the British government directed that when the law was silent on a matter they should decide the cases in accordance with justice, equity and good conscience. Justice, equity and good conscience have generally been interpreted to mean rules of English law on the analogous matter as modified to suit the Indian conditions and circumstances.47 Thus we find that there is an area of Hindu law, where rules of Hindu law and English law have been blended together or where the rules of English law have been grafted on the rules of Hindu law. This has been done in those cases where rules of Hindu law have been considered wanting or too rigorous or not in consonance with justice or equity. In practice, under this doctrine, it is mostly the rules of English law which have been incorporated in the body of Hindu law, though in theory the, courts were also free to take the recourse to other systems of laws. Since most of the judges were well versed with English law, in practice, recourse was frequently made to English law. On the basis of this doctrine, the courts could also apply the rules of Hindu law by analogy. 48 The Privy Council said “Hindu law is a jurisprudence by itself and contains within limits all the principle necessary

44

Gautama, XXVIII, 48. Brihaspati, II 12. 46 Mulla’s Hindu Law (14th edn.) 62. 47 Waghela Raji V. Sheikh Masludin 1887 14 IA 89. 48 Bhayah Ram Singh V. Bhayah Ungur 1870 13 MIA 373. 45

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for application to any given case”. Thus the Privy Council reduced the law of gift and applied them to the law of wills.49

2. PRECEDENT We know practically nothing of the judicial decisions of ancient times. The doctrine of Stare Decisis and precedent are essentially a gift of the British Administration of justice in India. Precedent is also called to be a source of Hindu law in two senses: first, practically all the important principles and rules of Hindu law have now been embodied in case law. In such matters, recourse to original sources is not necessary. Reference to leading decision is enough. Secondly precedent is a source of law in the sense that by the process of judicial interpretation, doctrines, principles and rules of law stand modified or altogether new principles, doctrines and rules have been introduced in the Hindu law. For these principles, rules and doctrines the source of authority is a precedent. It is in this second sense that we are concerned with precedent as a source of Hindu law. During the British rule, although the legislative machinery existed, for several reasons, it use to modify Hindu law was made sparingly. Then the only machinery available to carry forward this process was the judiciary which is professedly not a law making authority, though, it is now accepted that in the process of interpretation, judiciary does make law. The difficulties of English judges administering the Hindu law were great and many. They did not know the language of the Dharmashastras and they could not comprehend the spirit of Hindu law. At that stage of understanding of Hindu law, it was difficult for the English judges to grapple with a system of law in which legal obligations were co extensive with moral and religious obligations. It was initially difficult to comprehend the distinction between mandatory and recommendatory injunctions; it was difficult to make a clear distinction between the rules of positive law and rules of morality. However, this is not to belittle the role of courts and particularly of the Privy Council, as the highest court of appeal, in the development of Hindu law. In the words of Mr. Justice Desai, “with their mastery of jurisprudential concepts and their unmatched forensic abilities to expound and elucidate even the most complicated matters of unfamiliar laws affecting the personal status of parties, their Lordship of the Privy Council evolved principles and laid down rules on varied and complex subjects in their own unique style and generations of lawyers and judges in this country have acknowledged their indebtedness to that august tribunal for the lead and guidance given by it.”50 Today, the doctrine of stare decisis is a part of Hindu law. Supreme Court’s decisions are binding on all courts, though Supreme Court is not bound by its own decisions. The decision of State High Courts is binding on all subordinate courts though decisions of the High Courts are not binding on each other.

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Tagore case 1872 1 IA Suppl. 47. Mulla’s Hindu law (14th Edn.) 66.

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3. LEGISLATION Legislation is a modern source of Hindu law. As a matter of policy, Government during the British rule was slow and cautious to change Hindu law to legislative intervention. However the legislature modifications till August 15, 1947are not insignificant. Some of the statutes which have effected modification in Hindu law, either by reforming Hindu law or by superseding rules of Hindus, may be noted here. The earliest statute was passed in 1850, the Caste Disabilities Removal Act. It was followed by Widows Hindu Remarriage Act, 1856, Hindu Wills Act, 1870, Hindu Transfer of Bequest Act, 1914, Child Marriage Restraint Act, 1929, Hindu Gains of Learning Act, 1930, Hindu Inheritance (Removal of Disabilities) Act, 1928, Hindu law of Inheritance (Amendment) Act, 1929, Hindu Women’s Right to Property Act, 1937, Arya Marriage Validation Act, 1937, Hindu Women’s Right to Separate Maintenance and Residence Act, 1946, Hindu Marriage (Removal of Disabilities) Act, 1946, Hindu Marriage Validity Act, 1949. Thus Hindu law was reformed and modified to some extent. But these reforms were half hearted and piecemeal. Piecemeal reforms have their own drawbacks. One result of these piecemeal reforms was that, though reforms were introduced to change some aspects of Hindu law, thieir implications on other aspects was overlooked. For example, the Hindu Women’s Right to Property Act, 1937, was passed with a view to granting property rights to women, but its repercussion on the law of oint family was overlooked. The result was that these piecemeal reforms solved some problems but created others.

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CRITIQUE ON THE SOURCES It is significant to note that the term ‘Hindu’ is not defined anywhere in terms of religion or in any statute or judicial decisions. For the purpose of determining to whom Hindu Law applies, it is necessary to know who is a Hindu and none of the sources expressly state so. At most from statutes, we can get a negative definition of a Hindu which states that Hindu law shall apply to those who are not Muslim, Christian, Parsi, Jew, etc. and who are not governed by any other law. Hindu Law is considered to be divine law as it is strongly believed that the sages had attained some spiritual dominion and they could communicate directly with God form whom we get the divine law. But this is only an assumption and no concrete proof for the same is shown that the sages could communicate with God (whose very existence is challenged by atheists). Due to this, many communities are also suffering from the misapprehension or delusion that their forefathers and messiahs had revelations from God. Justice A.M.Bhattacharjee strongly states that according to him he cannot think that “even a staunch believer in any divine existence, transcendent or immanent, can believe in the 'divine origin’ of Hindu law, unless he has a motive behind such profession of belief or has not read the Smritis or is ready to believe anything and everything with slavish infidelity.”According to Justice Markandey Katju, Hindu law does not originate from the Vedas (also called Shruti). He vehemently asserts that there are many who propound that Hindu law originated from the Shrutis but this is a fiction and in fact Hindu law originated from the Smriti books which contained writings from Sanskrit scholars in ancient time who had specialized in law.The Shrutis hardly consist of any law and the writings ordained in the Smriti do not make any clear-cut distinction between rules of law and rules of morality or religion. In most of the manuscripts, the ethical, moral and legal principles are woven into one. It is perhaps for this reason that according to Hindu tradition, law did not mean only in the Austinian sense of jurisprudence and is objectionable to it; and the word used in place of ‘law’ was the Sanskrit word ‘dharma’ which connotes religion as well as duty. Although Dharmasutras dealt with law, they did not provide an anthology of law dealing with all the branches of law. The Manusmriti supplied a much needed legal exposition which could be a compendium of law. But according to Kane, “It is almost impossible to say who composed the Manusmriti.” The very existence of Manu is regarded to be a myth by many and he is termed as a mythological character. Many critics assert that the word Smriti itself means that what is remembered and therefore the validity or proof of the existing Smritis could be challenged. It cannot be said for certainty that what the sages remembered was actually what was propounded.Hindu law has generally been critiqued on the grounds that the Smritis and other customs were generally extremely orthodox and against the favours of women. Hindu society thus has always been a patriarchal society and women have always received subdued importance over men. Some

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also disapprove of the notions of caste-based system created by ancient Hindu law from which emerged the ill-perceived practices of untouchability, etc. The Smritis are admitted to possess independent authority but while their authority is beyond dispute, their meanings are open to various interpretations and has been and is the subject of much dispute. Till date, no one can say for sure the exact amount of Smritis which exist under Hindu law. It is due to the abovementioned problems that the digest and commentaries were established and various schools of Hindu law started to give birth. The modern sources of Hindu law such as Justice, equity and good conscience have been critiqued on the grounds that it paves the way for personal opinions and beliefs of judges to be made into law. We have seen catena of cases where the decisions of the Court have been criticised for want of proper reasoning. This also signifies the incompleteness of the laws which exist.The Supreme Court in most matters has ascertained the rules of Hindu law successfully but there are couple of cases where they have interpreted the rules in their own light. One of the gravest cases of the Supreme Court which deserves much criticism is the case of Krishna Singh v. Mathura Ahir. The Allahabad High Court had rightly held that the discriminatory ban imposed on the Sudras by the Smritis stands abrogated as it contravenes the Fundamental Rights guaranteed by the Constitution.However, the Supreme Court contradicted the above view and held that “Part III of the Constitution does not touch upon the personal laws of the parties. In applying the personal laws of the parties one cannot introduce his own concepts of modern times but should enforce the law as derived from recognised and authoritative sources of Hindu law....except where such law is altered by any usage or custom or is modified or abrogated by statute.” It can be submitted with ease that the above view is contrary to all Constitutional theories and is expressly in contradiction with Article 13. It is shocking to note that this judgment is yet to be over-ruled in express terms. Since the aegis of time, Hindu law has been reformed and modified to some extent through legislations but these reforms have been half-hearted and fragmentary. The problem with fragmentary reforms is that though reforms were made to change some aspects, their implications on other aspects were over-looked. For example, the Hindu Women’s Right to Property Act, 1937, was passed with a view to granting property rights to women but its repercussions on the law of joint family was over-looked. The result was that fragmentary reforms through legislations solved some problems but resulted in others. Many people make the mistake of considering various text books written by erudite scholars as sources of Hindu law. This is because the Courts have decided many cases relying on these text books and quoted them for reference. For example, Mulla’s Hindu Law has been quoted by many judges. In Bishundeo v. Seogani Rai, Justice Bose giving the majority judgment stated that “The rule laid down in Mulla’s book is expressly stated to be in cases where the position is not effected by a decree of a competent Court.” The same has been the case with many other text books. It should be made clear that text books are not sources of Hindu law and the authors have no authority to lay down the law.

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CONCLUSION It has been seen that Hindu law has been critiqued for its orthodoxy, patriarchal character and does not bear a very modern outlook of society. There are many areas where the Hindu law needs to upgrade itself, for example, the irretrievable breakdown theory as a valid ground for divorce is still not recognised under the Hindu Marriage Act, 1955, and even the of Supreme Court have expressed their concern on this. The most valid concern is that the very definition of a ‘Hindu’ is still not given in any of the sources. Statutes give only a negative definition which does not suffice the test of time. The very proponent that Hindu law is divine law has been challenged by scholars and atheists. There are many Smritis which are yet to be found according to Historians and many conflicts of opinions and interpretations have arisen for the existing ones, thus creating a window of ambiguity under Hindu law. There are also several areas where Hindu law is silent. Most of the ancient sources of Hindu law is written in Sanskrit and it is well known that in the present times there is a dearth of Sanskrit scholars. There is hardly any importance left of the ancient sources since the time the modern sources have emerged and been followed. It can be said that proper codification of Hindu law without room for ambiguity is the need of the hour. It can be said that where the present sources of Hindu law are uninviting the Legislature could look into sources and customs of other religions and incorporate them into Hindu law if it caters to the need of the society and meets the test of time.