The Classical Hindu Law : Chapter 01

(This is first part of a long article, having first chapter only, to be published in series in Maghaa. This scholarly paper on Classical Hindu Law is written by Vidit Singh Chauhan, a practising lawyer in Supreme Court of India and Delhi High Court.)

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TABLE OF CONTENTS

1. INTRODUCTION
   1. DETAILED INTRODUCTION
   2. THE CONCEPT OF DHARMA
   3. SOURCES OF LAW
2. ADJECTIVE LAW
   1. CONSTITUTION OF THE COURTS
   2. VYĀVAHĀRA (DISPUTE)
   3. INSTITUTION OF ACTION
   4. PRAMĀṆA (PRINCIPLES OF PROOF)
3. LAW OF PROPERTY AND CONTRACT
   1. POSSESSION, OWNERSHIP AND PRESCRIPTION
   2. BOUNDARY DISPUTES
   3. INTERESTS
   4. DEBTS, PLEDGES AND SECURITIES
   5. DEPOSITS AND TREASURE TROVE
   6. WAGES, HIRE AND COMPENSATION
   7. LAW OF COMMERCE AND COMPANIES
4. CRIME, PENANCE AND PUNISHMENT
   1. RELIGIOUS TRANSGRESSIONS
   2. THE PRĀYAŚCITA (PENANCE)
   3. SECULAR CRIMES
   4. PROPERTY CRIMES
   5. OTHER CRIMES
   6. PUNISHMENTS
   7. BLOOD MONEY
5. FAMILY LAW
   1. FORMS OF MARRIAGE
   2. SONSHIP AND ADOPTION
   3. THE JOINT FAMILY
   4. PARTITION
6. CONCLUSION
7. BIBLIOGRAPHY

LIST OF ABBREVIATIONS

ApDh	…	Āpastamba Dharmasūtra
ApGr	…	Āpastamba Gṛhyasūtra
Arth.	…	Kauṭalīya Arthaśāstra
AsGr	…	Āśvalāyana Gṛhyasūtra
AV	…	Atharvaveda Saṁhitā
BaudhDh	…	Baudhāyana Dharmasūtra
BrSm	…	Bṛhaspati Smṛti
Ch.Up	…	Chāndogya Upaniṣad
GauDh	…	Gautama Dharmasūtra
Kane	…	History of Dharmashastra, by P.V. Kane
KatSm	…	Kātyāyana Smṛti
MahBh	…	Mahābhārata
ManuSm	…	Manu Smṛti
Medh	…	Medhātithi
Mit	…	Mitākṣarā, commentary on the Yājñavalkya Smṛti
NarSm	…	Nārada Smṛti
Panini	…	Aṣṭādhyāyī of Pāṇini
RV	…	Ṛgveda Saṁhitā
SB	…	Śatapatah Brāhmaṇa
SmCh	…	Smṛti Chandrika
TS	…	Taittirīya Samhitā
TU	…	Taittirīya Upaniṣad
VaDh	…	Vasiṣṭha Dharmasūtra
ViSm	…	Viśṇu Smṛti
YagSm	…	Yājñavalkya Smṛti
YV	…	Yajurveda

INTRODUCTION

धर्म एव हतो हन्ति धर्मो रक्षति रक्षितः ।
तस्माद् धर्मो न हन्तव्यो मा नो धर्मो हतोऽवधीत् ॥

Dharma, being violated, destroys; dharma, being preserved, preserves;
Therefore, dharma must not be violated, lest violated dharma destroys us.^[1]

 

1.1   DETAILED INTRODUCTION

Classical Hindu Law is the corpus of the law and the legal system arising from the literary tradition of Sanātan Dharma or Hinduism. It is mainly comprised in the seminal texts—Veda (Saṁhitā and Brāhmaṇa), Dharmasūtra and Dharmaśāstra. It should not be confused with the modern day ‘Hindu Law’, which is the legislative codified law applicable to Hindus, Jains, Buddhists and Sikhs. This work is not a historical analysis of the legal content of our ancient texts. It is rather an attempt to study the legal system and the philosophy behind the system as a whole; how the system sustained as well as derived sustenance from the society in which it functioned.

Despite the wide spectrum of connotations associated with the term Dharma, its meaning coincides sufficiently with the commonly accepted usage of the term law so as to make possible a jurisprudential survey, in the modern sense, of the Classical Hindu Law from these Dharma texts. Therefore, the nature and scope of the term Dharma from a legalistic sense needs to be appreciated before embarking on this study.

It is pertinent to note that Classical Hindu Law did not necessarily emanate from a centralised sovereign and was not antagonistic or incongruous from religion. Nor was such a legal system limited to the duties and rights of an individual in a society or a nation-state. It touched upon the household, the family, and even to the daily chores of an individual, and therefore, had a scope much beyond the present day civil and criminal law.

The Vedic Literature of Samhita(s) & Brahman Grantha(s) touch upon certain ‘legal’ concepts in passing. Therefore, limited references will be made to the Rigveda Samhita, Atharvaveda Samhita, the Shatapatha Brahmana as well as certain Upanishads.

The Dharmasutras and the Dharmashastras will be the texts which will form the core of this research. As their name suggests, the Dharmasutras are aphorisms in prose and form the earliest source, in the strict sense, of Classical Hindu Law. Dharmasutrasare part of the Kalpasutras of the Kalpa—one of the six Vedanga, or ancillary branches of the Veda. Only four Dharmasutras have survived into this age—that of Apastamba, Gautama, Baudhayana and Vashishtha (in order of their antiquity). The subject matter of Dharmasutras is Dharma, which includes a variety of topics ranging from conduct of a Brahmin male during his lifetime to civil and criminal law. These are essesntially normative texts. The distinction of the Dharmasutras from the Grihyasutras and the Shrautsutras show that a separate legal tradition, in a loose sense, had started to develop.

This tradition is elaborated and presented in a more detailed manner in the Dharmashastras. These are based and inspired from the Dharmasutras. However, unlike them, the Dharmashastras are mainly composed in the verse form, having shlokas instead of sutras. They are part of the Smritis. The extant Dharmashastras are Manusmriti, Yajnavalkya Smriti, Naradasmriti and Vishnusmriti, although as many as 100 such smritis have been referred to in various texts. The subject matter of these Dharmashastras has been broadly presented under the three heads of Aachaar ­(good conduct), Vyavahara (judicial procedure, process), and Prayaschita (atonement, expiation). The concepts of Rajdharma and Sadachara are also discussed.

Other Dharmashastras, like the Parasharsmriti and the Katyayanasmriti, whose fragmented manuscripts have been found or which have been reconstructed on the basis of quotations, will be analysed briefly. Legal commentaries and digests on these Dharmashastras, called vivritti, have also been written. Some of these are important to study to fully understand the scope of the Dharmashastras. For instance, the Mitakshara written by Vijnaneshwara and the Dayabhaga by Jimutvahana, are both commentaries on the Yajnavalkya Smriti; Manubhashya by Medhatithi is one of the earliest commentaries on the Manusmriti.

Classical Hindu Law, especially the Dharmashastras, have had a definite influence on the codification of the Hindu Law, as well as the consequent judicial pronouncements. However, the ideals of this traditional legal system have not been adopted and followed to the extent that they could have been. The extent and the scope of the aforesaid influence and the relation, if any, to the modern jurisprudence will be discussed at the end.

1.2 THE CONCEPT OF DHARMA

Dharma is the word which has been constantly employed in the texts of Classical Hindu Law to refer to what we conceive of today, as law. Therefore, it is very essential, first, to understand the nature of the word dharma and to explore its usage within the context of our understanding of the conception of law. Although there has been a lot of fluidity and little agreement on what the definition, scope and extent of the word “law’’ is, however, its broad contours have been sufficiently delineated. The word immediately brings to our mind a state sanctioned coercive process that regulates and controls human activity. The same clarity cannot be claimed for the word “dharma”.

Dharma represents the ‘the privileges, duties and obligations of a man, his standard of conduct as a member of the Aryan community, as a member of one of the castes (varna) and as a member in a particular stage of life (asrama).^[2] Monier Williams defines it as variedly: that which is established or firm, steadfast decree, statute, ordinance, law; usage, practice, customary observance or prescribed conduct, duty; right, justice (often as a synonym of punishment); virtue, morality, religion, religious merit, good works; nature, character, peculiar condition or essential quality, property, mark, peculiarity; sacrifice.^[3] It can be observed from these definitions that dharma is at once, a religious, ethical, legal and a sociological concept.

Dharma is a word, which ‘has perhaps the most extensive semantic range of any term in the Sanskrit vocabulary’.^[4] It has been used in myriad different directions. Yet, large areas of its usage cover our contemporary understanding of law. It can be loosely translated as ‘law’, if we do not limit the definition of law to the modern positive law but include within it all forms of social behaviour, moral and religious.

The word has been derived from the Sanskrit root dhr-, ‘to hold’, ‘to support’, give foundation to. It occurs for the first time in the oldest surviving text in the world—the Rigveda, as an adjective or a noun (in the form of dharman, generally neuter). The exact connotation of the term in the Rigvedic context would be very difficult to speculate about. The term was employed at the cosmic, ritual and ethical social level, all at once.

On examination of the Rigveda, we find a gradual development or a dynamism in the meaning of the term, as we progress through the text. The earliest meaning is closely connected with the etymology of the word provided above. According to the cosmogynic hymns occurring at the beginning, the Vedic gods held forth and supported the sky and earth. It was only due to the provision of this kind of ‘support’ all through the Universe that a cosmic order was produced out of dark chaotic uniformity. The following Rig-Vedic mantra(s) denote this: RV 8.41.10; RV 8.15.2; RV 10.44.8; RV 2.17.5.

Dharma, in the form of Dharman, is then depicted as a stable, settled eternal, impersonal force, which holds into its grasp even the gods. The concept of Ṛta  is closely associated with this connotation.^[5] Dharman can mean a physical and even a universal, cosmic foundation; a foundation created by the ritual and a foundation for the ritual^[6]; and a foundation comprising royal authority which creates material or social bases for communities.^[7]

Finally, the dharma enters the human sphere when it signifies the commandments, customs and duties of the people and translates into its strictly legal domain.^[8]

 

1.3 SOURCES OF LAW

Due to the complex nature of the nature of Hindu Law, the expression ‘sources of law’ is not free from ambiguity. However, for this jurisprudential inquiry, such an exploration is necessary before embarking further. The problem in vetting these sources becomes apparent when we see the variety of topics that have been covered under this literature. As mentioned earlier, these texts have broadly three categories of topics- Achara, Vyavahar and Prayaschitta.

For this study, focus will be kept on the Vyavahara-ang, i.e. the branch which focuses on the law proper and the legal procedure strictly, and the other two angas will be touched upon briefly as and when required. Dharmasutras and the Manusmriti and Yajnavalkya Smriti themselves inform us of the sources of law. The Dharmasutras enumerate three sources of dharma: Veda, Smriti and Good Tradition., whereas the Manusmriti and Yajnavalkya Smriti add svasya priyam atmanah, atmatushti (self satisfactionor approval of one’s conscience) which states: “The Veda, the Smriti, the usage of good men and what is agreeable to one’s soul, the wise have declared these to be the fourfold indices of ‘dharma’ or approved conduct”.[9] These four sources are in decreasing order of authority, which means that the Veda is the highest authority of law and one’s conscience is the last resort.

Although in the above passage, the term ‘dharma’ has been used, which no doubt covers a wider field than positive law, in the Hindu context, positive law can never be divorced from, nay, is a part of the sacred law, as depicted by ‘Dharma’. It will be proper, therefore, to first and foremost examine the above-mentioned four indices first, apart from other sources that we come across.

The Veda

In the Sanatan Dharma, all knowledge is said to flow or proceed from the Veda. The word ‘Veda’ itself is derived from the Sanskrit root ‘vid’—to know. It is also regarded as ‘Shruti’—that which is heard or revealed. It is the Divine Revelation which has been passed down from the Divine to the mortals and from thereon, through great Ṛśis generation after generation. The Vedas have been written down very late.

The Veda is the sacrosanct, primary authority, which stands above all the rest of the legal literature. Every other text recognises and acknowledges its supremacy. All rules of dharma must find their foundation in the Veda. In a strictly legalistic sense, it can be compared to the modern Constitution, to which every other form of law is subservient.

The Veda, like the Constitution, may not at all go into the minutiae of the law. It declares the ideals and the principles, or the spirit, so to speak, of the law. In case of any doubt or conflict, it is the Vedas which will have to be consulted. It is the framework, within which, all law will have to be fitted.

The Vedas derive their authoritative precepts on from direct revelation and the wisdom imparted therefrom. Babu Golap Chandra Sarkar points out: “The Shruti contains very little of lawyer’s law; they consist of hymns, and deal with religious rites, true knowledge, and liberation. There are, no doubt, a few passages containing an incidental allusion to a rule of law or giving instance from which a rule of law may be inferred.”[10] It can also be said that when it is affirmed that that dharma is derived from the Veda, what it means in essence, is that all dharma is derived from the knowledge, ideals and understanding of the Veda. These are certain truths which are said to have always existed. That is the reason why Vedas are generally regarded as Apaurusheya, i.e., without human creation.

Given that the Veda is essentially regarded as a Revelation and Apaurusheya, it can be safely regarded as being transcendental in character. The question that then looms large is whether a written form can be regarded as being the repository of all Revelation. When Ṛśi-s like Manu regard Veda as a source of law, are they referring to the Divine Revelation or to any written form of the Veda? Only a few recensions of the Veda survive now, and even those that have survived must have gone through interpolations.

In view of the totality of these circumstances, it seems plausible that the Ṛśis were referring to the Revelation rather than the written texts. However, it was soon realised that the Vedic passages, which actually existed, should be accorded appropriate authority. To this end, the Mimansa school of philosophy was developed which would provide the methodology for the interpretation of these Vedic texts.

The methodology so developed was adopted by the Ṛśis from the Sutra period onwards, and thereafter by the commentators as well. Its effect was to reduce the scope of the interpretation of dharma within the written texts bestow a scholastic character to them. Despite this development of the Mimansa school, a comprehensive jurisprudence does not emerge from the Vedic texts alone.

As is well known, the Veda consist of four collections of liturgical texts—Rig-Veda, Samaveda, Yajurveda and the Atharvaveda. Each Veda had its own Shakha or Charana (recensions), belonging to a particular school of interpreters. Each of such Shakhas had its own collection of hymns, or the Samhita. The second division was the Brahmana, which which were treatises on ritual practices. The Brahmana was mainly for the officiating Brahmin to give him details of the rituals to be performed. The Aranyaka, the third division, were the forest texts (aranya is a Sanskrit word for forests), which were mainly meant for those in Vanaprastha Ashram stage of their lives. The final division is the Upanishad. It is also called the Vedant or the end of the Veda. It contains a clear philosophical synthesis of the seemingly abstract ideas contained in the Samhitas.

Although there has been considerable disagreement over the dating of the Veda, what cannot be disputed is that the they are the most ancient texts. PV Kane, in his seminal work ‘A History of the Dharmashastras’, states the period of the Vedic Samhitas, Brahmanas, and the Upanishads as 4000 BC- 1000 BC.[11] He goes on to surmise that some hymns may go back to a period even earlier than 4000 B.C.

The Smriti

Smriti is derived from the Sanskrit root ‘smar’ meaning ‘remembrance, reminiscence’. Although they are said to be different from ‘Shruti’, they tend to embody the purport of the Veda, not through revelation, but through the sages who are attributed to be its authors, since the Ṛśis are regarded as the repositories of the Revelation. It creates an inference that theu are founded on the Shruti and must, therefore, be regarded as authoritative.

In case of conflict between Shruti and Smriti, the Shruti will always prevail, as the abovesaid inference will only arise in case there is no conflict. The Smritis, in their widest interpretation, include the following texts:

1. Six Vedanga, comprising of shiksha (phonetics), chhanda (prosody), vyakaran (grammar), nirukta (etymology), kalpa (rituals, rites, conduct) and jyotish (astronomy and astrology).
2. Itihasa (History) including Ramayana and Mahabharat
3. Purana
4. Kavya
5. Bhashya
6. Sutra and Shastra of Indian Philosophy
7. Dharmashastra

Dharmasutra

One of the six Vedanga mentioned above—Kalpa—is written in the form of sutra or aphorisms, highly condensed or abstract sentences which have to be explained and commented upon to fully comprehend it. These Kalpa-Sutra are further subdivided into three categories:

• Shrauta Sutra dealing with sacrifices based on Shruti
• Grihya Sutra dealing with domestic rituals
• Dharma Sutra dealing with duties and privileges

Out of the three subdivisions, it is the third subdivision, Dharmasutras, which are of immediate concern to us.

Dharma Sutras are texts on Dharma in the Sutra format. The subject matter of dharmashastras includes, “education of the young and their rites of passage; ritual procedures and religious ceremonies; marriage and marital rights and obligations; dietary restrictions and food transactions; the right professions for, and the proper interaction between, different social groups; sins and their expiations; institutions for the pursuit of holiness; the king and the administration of justice; crimes and punishments; death and ancestral rites.As mentioned above, sutra means literally means ‘thread’ and we find that the individual sutras are connected syntactically to the preceeding and succeeding ones and makes the entire text interlinked.”[12]

Although many Dharmasutras are extant, some only in fragmentary form, only six of them have been published, while the rest are still resigned only to the manuscripts. Originally it was thought that all of them belonged to a certain collection of Kalpa-Sutra, but later on it was realised that only for Apastamba, Hiranyakesin and Baudhayana have been found in a complete form along with their corresponding Shraut Sutra and Grihya Sutra. The Dharmasutras bear a resemblance to the Grhya Sutras in many matters, not only linguistically but also subject-matter wise.

Dharmashastra

They are a genre of Sanskrit texts, and refers to the treatises (shastras) of Hinduism on dharma. There are many Dharmashastras, variously estimated to be 18 to about 100, with different and conflicting points of view. Each of these texts exist in many different versions, and each is rooted in Dharmasutras texts dated to 1st millennium BCE that emerged from Kalpa (Vedanga) studies in the Vedic era.

The textual corpus of Dharmashastra were composed in poetic verses, are part of the  Smritis, constituting divergent commentaries and treatises on duties, responsibilities and ethics to oneself, to family and as a member of society. The texts include discussion of ashrama (stages of life), varna (social classes), purushartha (proper goals of life), personal virtues and duties such as ahimsa (non-violence) against all living beings, rules of just war, and other topics.

All the topics can be divided under the three heads of Aachara, Vyavahara and Prayaschitta (good behaviour, judicial procedure and expiation, respectively). Focus will naturally be given to Vyavahara.

Bhashya & Nibandha

The Dharmasutras and Dharmasastras attracted secondary works called commentaries (Bhashya or sometimes vrivritti) would typically interpret and explain the text of interest, accept or reject the ideas along with reasons why.

Another category of secondary literature derived from the Dharmasutras and Dharmasastras were the digests (nibandhas). These arose primarily because of the conflict and disagreements on a particular subject across the various Dharma texts. These digests attempted to reconcile, bridge or suggest a compromise guideline to the numerous disagreements in the primary texts, however the digests in themselves disagreed with each other even on basic principles. Geographically, the medieval era digest writers came from many different parts of South Asia, such as Assam, Bengal, Bihar, Gujarat, Kashmir, Karnataka, Maharashtra, Odisha, Tamil Nadu, and Uttar Pradesh. The oldest surviving digest on Dharma texts is Krityakalpataru, from early 12th-century, by Lakshmidhara of Kannauj in north India, belonging to the Varanasi school.

The digests were generally arranged by topic, referred to many different Dharmasastras for their contents. They would identify an idea or rule, add their comments, then cite contents of different Dharma texts to support or explain their view. The famous Mitakshara and the Dayabhaga belong to this category of texts.

contd…(Chapter:2)

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BIBLIOGRAPHY

1. Vedic Texts

• Rigveda and Yajurveda Samhita– Pandit Damodar Satvalekar’s Commentary, Swadhyay Mandal Prakashan, Pardi.
• Taittiriya Samhita– Aanandashrama edition with the commentary of Saayana.
• Shatapataha Brahmana-edited by Weber.
• Chhandogya Upanishad-with commentary of Shankaracharya, Geetapress Gorakhpur.

 

2. Sutra Texts

• Apasatamba Dharmasutra-with the commentary of Haradatta, published at Kumbakonam.
• Apastamba Grihyasutra-with the commentary of Sudarshanacharya, Mysore Government Central Library Series.
• Asvalayana Grihyasutra-with the commentary of Narayana, Nirnayasagar Press.
• Baudhayana Dharmasutra and Gautama Dharmasutra–

Anandashram Press.

• Vasishtha Dharmasutra-ed. by Dr. Fuhrer, Bombay Sanskrit Series

3. Smritis

• Brihaspati Smriti-Anandashrama Press.
• Katyayana Smriti– reconstructed by PV Kane.
• Manu Smriti– with the commentaries of Medhatithi Govindaraja, ed. by V.N. Mandlik.
• Yagnavalkya Smriti-with the commentary Mitakshara of Vijnaneswara, Nirnayasagar Press.

4. Commentaries and Digests

• Dayabhaga– Jimutvahana, ed. by Pt. Jivananda.
• Medhatithi-vide Manusmriti.
• Mitakshara-Vijnaneswara, Nirnayasagar Press.
• Smritichandrika-Devanna-Bhatta, ed. by J.R. Gharpure.

5. Other texts

• Kautilya’s Arthashastra-Dr. Shama Shastri Edition, Mysore University Oriental Library.
• Nirukta-Yaska, ed. by Roth.

6. Books

• History of Dharmasastra (All Vols.)-Pandurang Vaman Kane, Bhandarkar Oriental Research Institute.
• A Dharma Reader: Classical Indian Law-Patrick Olivelle, Columbia University Press.
• The Spirit of Hindu Law– Donald R. Davis, Cambridge University Press.
• The Dharmasutras: The Law Codes of Ancient India– Patrick Olivelle, Oxford University Press.
• The Classical Law of India– Robert Lingat,, Munshiram Manoharlal Publishers.
• Jurisprudence, R W M Dias, LexisNexis, Fifth Edition.

[1] ManuSm VIII.15.

[2] PV Kane, History of Dharmashastras, Vol. I, Bhandarkar Oriental Research Institute, Poona, 1930, p. 2.

[3] Monier Williams, Sanskrit-English Dictionary, 2008-Revised Edition, University of Cologne, Cologne, 2008, p. 510.

[4] Patrick Olivelle, A Dharma Reader-Classical Indian Law, First Indian impression, Permanent Black, Ranikhet, 2017, p 1.

[5] RV VI.70.1; AV XII.1.17b; RV I.22.18=AV VII.26.5.

[6] RV I.164.50ab

[7] Joel P. Brereton, Dharman in the Rigveda, given in Patrick Olivelle (Ed.), Dharma-Studies in its Semantic, Cultural and Religious History, First Edition, Motilal Banarasidass Publishers, New Delhi, 2009, p. 63.

[8] RV VI.70.3c; AV XII.1.45; 18.3.1c.

[9] ManuSm II.12.

[10] Golap Chandra Sarkar Sastri, Hindu Law, 3^rd Edition, p. 11.

[11] PV Kane, History of Dharmashastras, Vol. II Pt. 1, Bhandarkar Oriental Research Institute, Poona, 1941, p. xi.

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