Eternal India Encyclopedia

Ancient Concepts, Sciences & Systems

the court should recognise the law as interpreted by commentators

even if such an interpretation was contrary to the wording of the

provisions in the

Smritis.

Custom and usage as the source of Hindu law

By virtue of the specific provisions of the

Smritis

indicating the

sadachara

(usage or custom) approved by the society as one of the

sources of law, immemorial customs acquired the force of law.

Consequently, customs and usages formed one of the dominating

factors in the evolution of the Hindu legal system. This position

was recognised by the Privy council as early as in the year 1868.

The judical committee of the Privy Council declared that under the

Hindu system of law clear proof of usage would outweigh the

written text of the law.

But before giving any particular custom an overriding effect

above the written law, the custom must (i) be ancient; (ii) be

reasonable and not opposed to public policy; (iii) be certain in its

nature; (iv) have been continued without interruption; (v) have

been practised or followed by persons in any particular locality or by

a group of persons; and (vi) be uniform and obligatory.

If these conditions are proved by clear and unambiguous evi-

dence in respect of any custom pleaded by a party, the courts can

give effect to it.

After the law making process was started by the Indian legis-

latures, a further restriction on the validity of customary law has

been that custom should not be opposed to any statute.

Hindu law not static

From the foregoing discussion, it may be seen that the Hindu

law was never static. Even the most ancient writers, like Gautama,

Manu, Yajnavalkya and others recognised the efficacy of

sad-

achara

as a source of law and later writers gave it an over-riding

effect over even the written texts. Such custom were incorporated

in the later

Smritis

or commentaries and digests. But the growth of

the Hindu law came to a stand still after the great galaxy of

commentators came to an end with the commentary

Viramitrodaya

of Mitra Misra. This might have been for the reason that the

country was in a distressed condition for centuries owing to foreign

invasions, foreign rule and frequent wars. For such historical

reasons the growth of law through illustrious commentaries suf-

fered a setback. However, after the advent of the British Rule the

growth of the Hindu law started again partly by judicial interpreta-

tion and partly by the legislative process.

Contribution of English judges

Some English judges made a great contribution to the develop-

ment of the Hindu law in spite of enormous difficulties they had to

face in the interpretation of the same on account of their lack of

knowledge of Sanskrit, which was the language of the Hindu

Dharmasastra,

and also being unaware of the religious traditions,

ancient usages and and mode of life of the people. These difficulties

were very well explained by the Privy Council in the following

words :

".... At the same time it is quite impossible for us to feel any

confidence in our opinion upon a subject like this when that opinion

is founded upon authorities to which we have access only through

Eternal India

encyclopedia

translations and when the doctrines themselves and the reasons by

which they are supported or impugned are drawn from religious

traditions, ancient usages and more modern habits of the Hindus

with which we are not familiar."

Despite the formidable difficulties faced by the members of

the Judical Committee of the Privy Council, it must be said that their

performance in moulding the Hindu law and their contribution to its

development stand as a glowing tribute to the sincerity of purpose

and devotion to duty of the judges of that highest tribunal. Mulla, in

his Hindu Law, records his appreciation of the achievements of the

Privy Council thus:

"With their mastery of jurisprudential concepts and their un-

matched forensic ability to expound and elucidate even the most

complicated matters of unfamiliar laws affecting the personal

status of parties, their Lordships 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."

Other Important works on Yajnavalkya

Viramitrodya of Mitra Mishra.

This is a commentary on Yajnavalkya composed in the early

part of the 17th century. This is accepted as an authority in all parts

of India where Mitakshara system prevailed but with greater au-

thority in the area governed by the Banares sub-divisions. The

privy council recognising the merit of this work observed : "Their

lordships have no doubt that the Viramitrodaya is properly receiv-

able as an exposition of what may have been left doubtful by the

Mitakshara and declaratory of the Banares school."

Yajnavalkya Dharmasastra Nibandah of Apararka

Apararka was a sihara king who flourished a century after

Vijnaneswara. His work is a digest rather than a commentary. It

had been accepted as of high authority in Kashmir and also recog-

nised in the Banares sub-division.

Nirnaya Sindhu and Vivada Tandava of Kamalakara.

Kamalakara is a jurist of the 17th century. Nirnaya Sindhu

was accepted as an authority on certain question of law by the High

courts such as those involving division of property and ceremonies

such as marriage,

Upanayana

or thread cerenomy, right to perform '

shraddha

and succession to

stridhana.

Vivada Chintamani and Vyavahara Chintamani

Vachaspati

Mishra Vivada Chintamani is regarded as the highest authority

among the works belonging to the Mitakshara system in the Mith-

ila sub-division.

Vyavahara

Mayakha of Nilakartha Bhatta

In Western India while the authority of Mitakshara in general

remained unquestioned the view expressed in Vyavahara

Mayukha by Nilakhanta Bhatta were given preference. In the

western sub-division in the areas of Maharashtra and North Ka-

nara, Mitakshara alone is accepted as the authority. But in Gujarat,

Bombay city and North Konkan the

Vyavahara Mayukha

is given

preference to Mitakshara whenever there is a conflict between the

two. This work was composed in the beginning of the 17th century.

Nilokharthan Bhatta though a Maharashtrian was born at Banares.