Eternal India Encyclopedia

Ancient Concepts, Sciences & Systems

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." 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." 2) 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. 3) 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. 4) Vivada Chintamani and Vyavahara Chintamani of Vachaspati Mishra Vivada Chintamani is regarded as the highest authority among the works belonging to the Mitakshara system in the Mith- ila sub-division. 5) 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. Other Important works on Yajnavalkya 1) Viramitrodya of Mitra Mishra.

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