Eternal India Encyclopedia

Eternal India encyclopedia

Ancient Concepts, Sciences & Systems

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 t 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:

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 of 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

Mitakshara by Vijnaneswara

1.

Dayabhaga by Jimutavahana

2.

Smriti-chandrika by Devanna Bhatta

3.

Vivada Ratnakara by Chandeswara

4.

Parashara Madhaviya by Madhvacharya

5.

6. Vivada Chintamani by Vachaspathi Mishra

Vivadachandra by Laxmidevi

7.

Saraswati Vilas by Pratap Rudradeva '

8.

Dayatatva by Raghunandana

9.

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