Eternal India Encyclopedia

Ancient Concepts, Sciences & Systems

Eternal India

encyclopedia

to suit the changing needs of society which took the shape of the

interpretation of laws by very eminent jurists. Most of the

Smritis

were in the form of verses and were difficult to understand. There

were also a few apparently conflicting provisions in the Smritis.

Several eminent jurists wrote commentaries on the

Smritis

during

their respective times and made the

Smriti

law practical, under-

standable and workable. Such authoritative works came to be

accepted by society as laying down the correct position on all

matters of law. In the interpretation of the

Smritis,

custom and

usage had a great influence. By the process of interpretation well -

accepted customs and usages were woven into the legal system

and thereby satisfied the requirement of changes called for, to suit

the needs of the developing society. The task of reconciling the law

laid down in different

Smritis

by way of interpretation and of ab-

sorbing the customs and usage into the legal system was dis-

charged by the jurists admirably. The treatises were acceptable as

authoritative expositions of the law of the Smritis and came to be

used liberally in the administration of justice.

In the course of interpreting the laws the commentators recon-

ciled conflicting principles and gave a reasonable interpretation

rejecting rules which had become obsolete, even modified and

supplemented the rules of the

Smritis

by their own forceful reason-

ing or by referring to the usages that had developed and acted upon

by society. In doing so they took the very principle laid down by the

Smritis

viz., 1. Custom and usage and good conduct would form a

source of law. 2. In case of conflict between the

Smritis

that which

is reasonable should be adopted.

While there are numerous

Nibandhas

(commentaries and di-

gests) some of the important ones which have been accepted and

followed by society and enforced by the courts in the past and even

in recent years and at present are:

Mitakshara

by Vijnaneswara

Dayabhaga

by Jimutavahana

Smriti-chandrika

by Devanna Bhatta

Vivada Ratnakara

by Chandeswara

Parashara Madhaviya

by Madhvacharya

Vivada Chintamani

by Vachaspathi Mishra

Vivadachandra

by Laxmidevi

Saraswati Vilas

by Pratap Rudradeva '

Dayatatva

by Raghunandana

10.

Vyavahara Nirnaya

by Varaharaya

11.

Vyavahara Mayukha

by Nilakantabhatta

12.

Viramitrodaya

by Mitramisra

13.

Nirnaya Sindhu

by Kamalakara

14.

Yajnavalkya Dharmashastra

by Apararka

15.

Dattak Mimamsa

by Nandapandita

16.

Dattakachandrika

by Kubera

17.

Dayakarma Sangraha

by Srikrishna-Tarkalankar.

A careful study of the legal literature referred to above dis-

closes that the system of jurisprudence was well developed in

ancient India. Having regard to the dates when the books were

written, it is generally agreed that Hindu jurisprudence is the most

ancient system of jurisprudence. Some of the legal principles

propounded in the hoary past by the Hindu jurists exhibit their

outstanding contribution made to the development of law. Several

of the principles propounded by them are of eternal value and many

of those principles are found incorporated in one form or the other in

the various laws enacted by modern legislatures.

Among the Dharmasutras the

Gautama Dharmasutra

is con-

sidered to be the oldest. Gautama deals with legal and religious

matters extensively. He covers various matters like marriage,

inheritance, partition and

stridhana.

Next in importance and antiquity is the

Bandhayana

Dharmasutra

which deals with a variety of subjects like marriage,

sonship and inheritance. In its full and original form this

Dharmasu-

tra

has not been traced. However some portions are available for

study.

The

Apastamba Dharmasutra

is preserved in its full form.

Apastamba was not a conformist but a revolutionist who did not

hesitate to controvert, or condemn earlier writers whenever he felt

that the

Vedas

had been misinterpreted. For instance

Apastamba

took exception to and condemned the practice of polyandry in the

disguise of

niyoga,

as also the custom of begetting an issue through

a sister-in-law for the sake of alleged spiritual benefit. He also

criticised adoption and observed that it amounted to the selling or

deserting of one’s lawful issue.

Harita Dharmasutra

is another important sutra work. The value

prag-nyaya

i.e. the principle of

res judicata

was propounded by

him in the earliest period of the development of law in ancient India.

This rule propounded by him shows that at so early a stage the idea

of finality of judgment as an important rule in the administration of

justice was visualised and incorporated.

The

Vasihsta Dharmasutra

though an important work has not

been traced in its entirety. Unlike Apastamba, Vashista recognised

the system of adoption. He declared that it was legitimate to

procure a son through adoption.

The major portion of

Vishnu Dharmasutra

is in prose. The

concluding portions are in the form of metric verses. He deals with

various topics of civil law such as marriage, inheritance, debts,

treasure trove etc as also criminal law.

There are several authors of

Dharmasutras

whose works have

been lost. Though their works have not been traced their existence

is proved by quotations from their works in several commentaries

and digests.

Usanas

is one of the law givers to whom reference is

made in

Yajnavalkya Smriti.

He laid “down that a son is under no

obligation to pay a fine or tax due by the father as also the cele-

brated rule of Hindu law, that a son is not liable to discharge an

avyavaharika

debt i.e. a debt contracted for an immoral purpose.

CODE OF MANU

Among the

Smritis

the

Manu Smriti,

the code of Manu, forms an

important landmark in the legal history of India. Right from the age

of the

Rig Veda

almost all authors of

Dharmasutras

refer to the

opinion of Manu and he was regarded as the first law giver. We find

reference to various Manus such as Manu, Swayambhu Manu,

Vriddha Manu and Pracheta Manu. It has not been possible for

research scholars to say who among these Manus was the first law

giver and it is also doubted as to whether any law giver by name

Manu existed or some one compiled it and • gave it the title,

Manusmriti.

The opening of the

Manusmriti

indicates that the

Smriti in its present form appears to have been recast or compiled

by Sage Brighu somewhere between 200 B.C. and 200 A.D. and that