(Hindū Dharmaśāstra-s, 5th part (part 1st, part 2nd, , part 3rd, part 4th) of a long article being published in series here. 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.)
TABLE OF CONTENTS
- INTRODUCTION
- DETAILED INTRODUCTION
- THE CONCEPT OF DHARMA
- SOURCES OF LAW
- ADJECTIVE LAW
- CONSTITUTION OF THE COURTS
- VYAVAHARA (DISPUTE)
- INSTITUTION OF ACTION
- PRAMANA (PRINCIPLES OF PROOF)
- LAW OF PROPERTY AND CONTRACT
- POSSESSION, OWNERSHIP AND PRESCRIPTION
- BOUNDARY DISPUTES
- INTERESTS
- DEBTS, PLEDGES AND SECURITIES
- DEPOSITS AND TREASURE TROVE
- WAGES, HIRE AND COMPENSATION
- LAW OF COMMERCE AND COMPANIES
- CRIME, PENANCE AND PUNISHMENT
- RELIGIOUS TRANSGRESSIONS
- THE PRAYASCHITTA (PENANCE)
- SECULAR CRIMES
- PROPERTY CRIMES
- OTHER CRIMES
- PUNISHMENTS
- BLOOD MONEY
- FAMILY LAW
- FORMS OF MARRIAGE
- SONSHIP AND ADOPTION
- THE JOINT FAMILY
- PARTITION
- CONCLUSION
- BIBLIOGRAPHY
LIST OF ABBREVIATIONS
| ApDh | … | Apastamba Dharmasutra |
| ApGr | … | Apastamba Grihyasutra |
| Arth. | … | Kautilya’s Arthashastra |
| AsGr | … | Ashvaalayana Grihyasutra |
| AV | … | Atharvaveda Samhita |
| BaudhDh | … | Baudhayana Dharmasutra |
| BrSm | … | Brihaspati Smriti |
| Ch.Up | … | Chhandogya Upanishad |
| GauDh | … | Gautama Dharmasutra |
| Kane | … | History of Dharmashastra, by P.V. Kane |
| KatSm | … | Katyayana Smriti |
| MahBh | … | Mahabharata |
| ManuSm | … | Manu Smriti |
| Medh | … | Medhatithi |
| Mit | … | Mitakshara, commentary on the the Yagnavalkya Smriti |
| NarSm | … | Narada Smriti |
| Panini | … | Ashtadhyayi of Panini |
| RV | … | Rigveda Samhita |
| SB | … | Shatapatah Brahmana |
| SmCh | … | Smriti Chandrika |
| TS | … | Taittiriya Samhita |
| TU | … | Taittiriya Upanishad |
| VaDh | … | Vasishtha Dharmasutra |
| ViSm | … | Vishnu Smriti |
| YagSm | … | Yagnavalkya Smriti |
| YV | … | Yajurveda |
FAMLIY LAW
5.1 FORMS OF MARRIAGE
The anomalies in the family law of the Brahmans are explained in their essence quite simply if it is comprehended what a high value was attached to the possession of a male descendant from economic and religious motives and by a crude conception about the position and vocation of the women it was held, inter alia, that the children of the wife belong to the husband who is the owner of the woman even when he is not their father, just as the crops growing in a field belong the owner of the field even though he has not sowed it.[342]
This view has however been challenged already in the Veda (Shruti) and in some Smṛitis it has certainly been repudiated. A similar contrast between cruder and finer conceptions is met with also in the Indian law of marriage, in which beside the extremely rigid and lofty idea of marriage we find matches being made by purchase or robbery or by defrauding the woman of her portion.
Marriage by capture is one of the famous eight forms of marriage, the names of which are graduated according to the hierarchical order of the gods and demons whose names are connected with these forms of marriage. Marriage by capture, however, is generally permitted only to Kshatriyas if not altogether forbidden. Its designation Kshatra Vivaha “the form of marriage appropriate for Kshatriyas”[343] expresses most clearly its connection with the warlike nobles.
Besides, it of course also known by the usual designation of Raakshasa Vivaaha “demon marriage,” which is defined as forcible abduction. The Paishaacha Vivaaha is the lowest form and is generally altogether rejected. According to Ashvalaayana,[344]however, it is not merely a euphemism for rape as according to other interpretations, but consists of secret abduction and is therefore superior to the Raakshasa Vivaaha, abduction effected by means of violence and fighting.
The Kamasutra likewise places the Paishaacha Vivaaha above the Raakshasa Vivaaha; the former is said to take place in this way: the foster sister of the maid (dhaatreyika) of the young lady, on understanding with the wooer, makes her drunk and in this state delivers her up to him, or he proceeds in this way without the help of the dhaatreyika.
On the other hand, the Raakshasa Vivaaha is said to consist of forcible abduction of the young woman by pouncing upon her when she is journeying or is in another village or a garden and to put her guards to flight or to kill them. Whether connections formed in this way could afterwards be legalised by the celebration of the nuptial ceremony, is a controversial point. Otherwise capture of women is considered to be a crimes punishable by death, at least when the abducted woman is of a caste higher than that of the ravisher; only she who has not been married off by her father at the proper time may be seduced with impunity.
Similarly, the choosing of husband (svayamvara) described in the epics, which is well known specially from the episode of Nala and Damayanti, seems to have been confined among the Kshatriyas. The father of a marriageable princess arranges that princes of his own standing should present themselves at the Svayamvara of his daughter and in the festive assembly the patimvara as a sign of her choice puts the garland round the neck of the chosen bridegroom. This custom, seemingly worthy of an age of romance and courtesy to women, which moreover is mentioned already in the Rigveda, is by no means irreconcilable with the practice of abducting women, as is shown in the case of Duryodhana who being rejected in the choice of husband carries off the princess by force.
Of course, the festive Svayamvara of the epics is not found in the Smṛtis and the choice of husband is allowed to the young lady only if she is not married even after some time has passed after her attainment of puberty; in doing so, however, she forfeits all claim upon the inherited family jewels while on the other hand, the bridegroom too need not in such cases pay the nuptial fee to the bride’s father;[345] he may even kidnap the bride.
The motive in this is that the father loses his authority over the daughter through his delay in giving her away in marriage and from this point of view it is understandable why the Brahmans do not count the Svayamvara among the eight forms of marriage.
The Gaandharva Vivaaha too—the love-marriage without the consent of the parents—seems in the first place to have been a privilege of the nobles and therefore can be connected with the Raakshasa Vivaaha,[346] i.e., the bride, on understanding with her lover, is forcibly carried away from the house of her parents. The best known and often quoted example of a pure Gaandharva marriage out of the epic is the story of Shakuntala and Duṣhyanta and a secret marriage of this sort without nuptial ceremonies (nirmantra) has even been called the most appropriated form of marriage for the Kshatriyas in Mahabharat[347]. Historical instances of love affairs of Indian princes are found, for example, in the Raajatarangini.
As a counterpart to the above-mentioned mainly aristocratic forms of marriage there is the plebeian form Asura Vivaah, i.e., the purchase of women, which is allowed only to the Vaishyas and the Shudras.[348] Of course, general protests against every form of the purchase of women is one of the favourite themes of the Smṛtis. According to Manusmriti,[349] even for a Shudra, it is prohibited to accept price for his daughter when giving her in marriage as it would be an act of trading in a veiled form which was never heard of in the past.
Even the giving away of the bride for a cow and a bull at the Aarsha Vivaaha, allowed to the Brahmans, should be taken merely as a homage to the bride.[350] Even the recompense of 100 cows for the bride is said to be merely a formality, specially as the bridegroom receives the present back.[351] It is possible that the Aarsha Vivaaha had already changed into a mock purchase in which a cow and a bull were given to the bride’s father by the bridegroom only for form’s sake and which were given back to the bridegroom by the latter as the commentary on Baudhayana Dharmasutra expressly lays down.[352]
It is also unmistakable that the price of the bride (shulka) mentioned in the Smṛtis often signifies merely a present from the bridegroom to the bride or from the husband to the wife. Elsewhere however this term may have only the meaning “price of the bride,” for example, when Manusmriti[353] says that if a false bride it presented to a bridegroom he should be granted two brides for the shulka he has paid, or when Manusmriti[354] says that to give away the daughter “for the price settled upon as shulka” is a covert act of selling.
On the other hand, however, Manumsriti[355] also says that in case the bridegroom dies after the shulka has been paid, the brother of the bridegroom shall represent him. The wife is even mentioned as a means of earning money.[356]
The law of marriage recognises as orthodox and appropriate for Brahmans only the first four forms of marriage in the usual list. Only of those marriages, pure children are said to be born who should atone for the sins of their ancestors and descendants- in case of the Brahma Vivaaha up to the 10 generations or even to the 21st generation, and the sons born of the three lower forms of marriage would atone for the sins of correspondingly fewer and fewer generations. The women married according to the Brahma rites are said to go themselves to the heaven of Brahman after their death; if married according to other forms, they would go to the heavens of Vishnu and other gods respectively. The husband has a claim on the Stridhana of his wife only if he has married her according to one of the higher four forms of marriage.
The characteristics of these forms of marriage are as follows: in the Brahma Vivaaha, the bride is offered out of free will and presented to an honourable man while in the Daiva Vivaaha, the bridegroom is a sacrificial priest, ritvij; in the Aarsha Vivaaha the father of the bride receives a pair of kine as already mentioned above, and in the Praajaapatya or Kaaya Vivaaha, the offer of marriage comes from the wooer. These differences are not important and are apparently based on the religious conceptions of greater or lesser merit of an alms the bride is here regarded as such- according as it is given away freely or is solicited or is presented to a man of more or less respectable position. The sacrificial priest is, as is often the case, inferior in position to a virtuous and learned Brahman; on the other hand his position is raised if he is just at that time engaged in a sacrifice just as the murder of a man engaged in a sacrifice is a still more heinous crime.
5.2 SONSHIP AND ADOPTION
The twelve kinds of sonship,[357] which to some extent, are based on the illicit connections of the mother and for the greater part have nothing to do with the blood-relationship of the son with the father, axe probably the most striking feature of Indian family-law. The cause of this abnormal importance being attached to male issue is to be sought, according to the Smritis, in the offering of sacrifices to the manes which depends upon the male issue; yet however originally an economic motive was perhaps a more important factor in it—to get for the family as many powerful workers as possible. The children belong to the husband—the owner of the wife—even though he is not their father, and over and above this through adoption he can take into his patria potestas other children out of that of another person.
Yet even from the very beginning in the Smritis and in the Puranas such secondary sons (putrasthaaneeya, gaunaputra) have been regarded as not equal with the legitimate sons (aurasa) and therefore a hierarchy of at least 12 sons has been made among whom each preceding member gets the preference over the succeeding ones in inheritance. The Aurasa is always at the top of the list while the order and nomenclature of the others vary according to particular individual opinions and school traditions. A list of 12 sons differing a good deal from the ordinary list is found in Mahabharata,[358] an enumeration of 5 sons in Mahabharata 1.74.99 and another of 3 sons is found in Buddhistic works.
In the Smritis generally immediately after the Aurasa we find “the son of the wife” (kshetraja) i.e. the son raised upon her by the husband’s brother etc. through Niyoga. Five lists mention the “son of the daughter” (putrikaaputra) in the third place; yet in Manusmriti,[359] he has been placed on an equal footing with the legitimate son and other authors place him at least above the Kshetraja though Gautama, however, recognises him only as the tenth in the order of sons.
He is also mentioned in the Mahabharata[360] and seems to occur already in the Rigveda-1.124.7 according to the old interpretation, which however is extremely doubtful As on the occasion of Niyoga here too an endorsement taken place by which, there being no male issue, the daughter is given away to the bridegroom on the condition that his future son should be regarded as the son of his maternal grandfather. According to another opinion, such a declaration was unnecessary and the daughter was to be regarded as the heiress if the father only wished it, or in general, if she had no brother with evidently better claim to the property according to the general principles of the Indian law of inheritance. For this reason already until the Nirukta 3.5, warning is given against marrying a girl who has no brothers, because the son born of such a marriage would belong not to his father but to his maternal grandfather.
This right of the grandfather over his grandson could be bought over from him by the bridegroom, but this view is met with only in the commentaries. The heiress daughter may herself be regarded as a son, specially according to Vasishtha[361] and she occupies a high position in the hierarchy of sons. Out of the criminal intercourse of the woman before and after her marriage are born the “son of the virgin” (kaaneena) belonging partly to the maternal grandfather and partly to the later husband of his mother, the Sahodha i. e. a son with whom the mother was pregnant even at time of her marriage, be her pregnancy known or not, and the “secret born son” (guudhaja, guudhotpanna), i.e. the son born of wife’s adulterous intercourse, but who has seen the light in the house of her husband.
The Sahodha and the Gudhaja are regarded as sons of the husband according to the principle pater est quem nuptial demonstrant (he is the father whom the marriage proves to be so). The Sahodhais the lowest of these three sons and is usually given the eighth or a still lower place, probably because marriage with a pregnant woman was considered shameful. The Kaaneena often occupies the fourth place and is mostly given preference to the Gudhaja who is disgraced with the stain of adultery.
The adoptive sons are: the “given” son (datta, dattaka), who is given away by his parents in adoption, the “made” or “artificial’’ son (krita, kritrima), who is adopted when already grown up; the son who lots himself be adopted of his own free will (svayamdatta); the “expelled” son (apaviddha) who is expelled turned out by his parents without any ground and is adopted as son by another and lastly the “purchased” son (krita) whom his own parents sell to his adoptive parents.
In most of the lists the adoptive sons are—certainly because they have blood-relationship with none of the two parents—placed below the sons mentioned above; so many as four authors assign to the Svayamdatta the last place among the twelve sons just as among the 15 kinds of slaves, those who sell themselves are estimated lowest.[362] Also the place of the Kritrima, Apaviddha or the Krita is often the last or the last but one.
The son by a Shudra wife or a Shudra concubine is mostly given the lowest place, as also in the Mahabharata, if he is not altogether ignored, in conformity with the ruling principle of the objectionable character of such connections.
In most of the enumerations of the 12 sons they are divided into two groups of six each and only the first six are recognized as heirs and the latter six only as relations but not as heirs to their legal father. The hard rule that the superior son should always dispossess the inferior son and that the latter has only a subsidiary right of inheritance is of course often avoided but in comparison with the Aurasa the inferior sons get a miserable portion of the legacy, almost next to nothing—only 1/21 part of it, or is only allowed mere subsistence.
Brihaspati[363] admits only the Aurasa and the Putrika or her son to be legitimate sons and of course recognises faultless adoptive sons and those of a Shudra wife as sons of middling quality, goes much further and condemns the Kshetraja and other sons of the wife and in 24.14 declares all the 13 subsidiary sons to be no longer in vogue. Otherwise all the sons excepting the Aurasa and the Dattaka are usually said to be “forbidden in the present day” (kalivarjya) and this is also the point of view of the later jurists, only besides the Dattaka sometimes all the other adoptive sons and frequently at least the Kritrima are recognised.
The more the other kinds of sonship fell into desuetude through the advance of morality and the increasing prevalence of child marriage, so that they came to be regarded merel as an odious privilege of the Rishis of youre, out of vogue in the present day, the more was the theory of adoption improved and was at last developed into one of the most important institutions of Classical Hindu Law.
The datio in adoptionem (giving away in adoption) of a Dattaka is a ceremony in which the parents or the father alone or the mother with the permission of the father give away their son before witnesses to the adoptive parents so that he leaves his own family forever to enter the family of his adoptive parents. The giving away of the son by his own parents is based on their right of disposition over the son by force of which they can give him away, sell him or turn him out of the house; in this connection the Smritis refer to the well know legend of Sunahshepa in the Aitterya Brahman whom his father Ajeegarta sold to Raja Harishchandra under pinch of poverty and who was afterwards adopted by Vishvamitra.[364]
The only son of the original parents should in no way be given away because he is indispensable for the continuation of the family; on similar grounds sometimes the giving away of the eldest son is forbidden. The rule that the adoption must take place in early childhood before the sacred ceremonies, viz. shearing of hair of the adoptandus (chudha) and his initiation (upanayana), are performed or when he is not more than five years of age, is based in fact only on a text of the Kaalikaapurana the authenticity of which has been questioned by various commentators; yet however it corresponds to the nature of Dattaka-adoption in contradistinction to the adoption of a grown up boy in the Kritrima form.
The sacred ceremonies of the boy must take place in the family of the adoptive parents so that he may be fully assimilated to it in conformity with the principle that the adoptandus is the shadow of a real son. The adoptive son therefore must be of the same status and caste as those of the adoptive father; the nearest blood relations should in particular be chosen for this purpose and according to the commentaries first of all the brother’s son and eventually a distant agnate relative should be selected, but never the son of the daughter or of the sister.
Of the adoptive parents the mother alone has the right of adoption only if the father gives permission and a further precondition for it is that no son of theirs should be living at the time of the adoption.
If at a later period the adoptive oarents come to have a son born in the wedlock the adopted son gets only a fourth part of that son’s share. On the contrary his prospects may brighten up very much if the other sons of his original father die and this the legacy of the latter reverts to him. Then he is regarded as the ‘son of two fathers’ (dviyaamushyaayana).
5.3 THE JOINT FAMILY
The basis of the Indian joint family is that the different members of it should dwell in the same house, take their meals and perform the divine service at the same time and enjoy their property in common. The joint preparation of food and eating at the same table are the external signs of homogeneity in the family as well as in the far wider organisations of castes (jaati), and the members of the family are therefore directly called the community of ekapaakena vasataam’ i.e. those who cook in common.[365]
It is quite understandable that the Smritis should attach great importance to the ‘cult of manes, Gods and Brahmans’ and therefore recommend the division of property, because in that case the cult which was formerly observed jointly would be separately performed in each household.[366]
The community of property is absolute and according to Naradasmriti,[367] it includes also cattle and rice as well as houses, lands and slaves and even acts of giving and taking, incomes and expenses should have to be done by common consent.
Apastamba and Baudhayana do not even differentiate acquisition from inheritance. Vashishta[368] speaks of the self-acquired property of which a double share would belong to the earner. The father can divide among his sons in any manner he chooses what he has earned himself.[369]
Usually the earnings through learning (among Brahmans) are specially mentioned as indivisible—that is to say, the remuneration for teaching a pupil, for the recital of Vedic texts, performance of sacrifices etc, and further, the booties of war (among the Kshatriyas), presents from relatives, the dowry and the property of a wife, lost properties recovered by a particular member of the family etc. are declared to be indivisible; yet however, every earning, if it is made with the help of the family property, is to be deposited in the common coffer; thus, for example, if a warrior uses a horse or a weapon of the joint-family, or if a Brahman student leaves his family in the case of his brother who is not a learned man during his stay with a teacher in some foreign land—whatever is earned that way becomes the property of the joint family.
The compass of the joint family was and is frequently very considerable. Not only parents and children, brothers and step-brothers, live on the common property, but it may sometimes include ascendants, descendants and collaterals up to many generations. On account of the custom of child-marriage the paterfamilias may become a grandfather even in the prime of life and often lives even to be a great- grandfather.
Originally the circle of Sapinda relations, connected with one another through the sacrifices to the manes, extended from the great-grandfather to the great-grandson in the ascending and the descending orders The great-great-grandson does not belong to it,[370]and thus in the opinion of Devala and others the right of inheritance among relations (kulya) living together extends to the fourth generation, but by others the limits are still more widened or are, in part, narrowed too.
The patriarch who was at the head of the family, could not, as a rule, be compelled to divide the property and so until his death the number of the members of the family living with him on the common property would be steadily increasing particularly as every male descendant brought home a daughter-in-law even in his tender years, the daughters even after marriage remained in the paternal house till they were 13 years of age and over and above the legitimate sons there were adoptive and illegitimate sons of every kind and besides the legitimate wives there were also the concubines.
If the paterfamilias died without previously accomplishing the partition, his place was taken by his eldest son who was either simply regarded as the heir or was at least considered to be the director of the household and had to look after his brothers and relations as a father.[371] According to another and perhaps later view the eldest son merits this distinction only if he is fit for it and also a younger or even the youngest brother may be the chief of the whole family if he is capable because, the fortune of a family depends on capacity.
Of course, disputes might easily arise among the brothers over the inheritance and they may go to the length of a partition; yet even after complete partition a re-union of the coparceners may take place who are then called Samsrshtins. The inter-relation between the Samsrshtins is the same as that between unpartitioned coparceners[372] only there is no right of primogeniture among them. The rule of Brihaspati, that such re-union is allowed with the father, brother, or the father’s brother, may be interpreted, with a section of the commentators, to mean that these near relatives have been mentioned only as typical examples and that a re-union may include all the members who originally belonged to the family in its entirety, perhaps even such coparceners who did not originallv belong to it.
The position of individual family-members inside the joint-family was varied according to age, sex and achievements, According to Naradasmriti,[373] the head of the family rules over his family as a king rules his subjects and a teacher his pupils. His wives and servants are to obey him implicitly and even his sons continue to be dependent on him so long as he is alive even when they have attained majority with the sixteenth year.
The father of the family alone can conclude valid legal business and represent the familv elsewhere. Whatever a minor or unindependent member of the family does is no better than if it had not taken place at all. Of course, the father’s power of acting ceases if there is doubt as to his sanity of mind and according to Harita[374] the eldest son may take over the management of the property in his place if he is decrepit, (another reading, wasteful), absent or ill.
He can do whatever he likes with his sons—give them away, sell them or turn them out;[375] yet the selling of children is forbidden already by Apastamba[376] and the turning out of a son, excepting when he commits a serious crime, was rendered punishable.[377] The earnings of the sons generally belong to the father— they are in this respect on the same footing with the slaves and the wives. He has to support the daughters-in-law even if they are widows; he can however demand from them in exchange absolute devotion so that a present made to a daughter-ill-law in recognition of her devotion was called Padavandanika Stridhana. In the teachings about venerable personages (Guru) the father mostly stands first; he is the Guru par excellence and therefore he is entitled to the first place in salutation; along with the mother he tops the list of those relations who should be saluted not only by greeting but also by touching the feet.
As in the regulations about greetings so in other cases too, the mother or the matron (grihini), is frequently placed at the side of the father. In the enumerations of Gurus in the Smritis, she is to some extent placed even above the father and the Mahabharata[378]too gives the highest place to the mother among the Gurus. The real as well as the adoptive mother takes part in the adoption.
The calumniations in which insulting words are said of the mother is punished more severely than those about the sister or the daughter. In the law of inheritance, according to Manusmriti, when male descendants are wanting, the mother or even the paternal grandmother of the testator is to inherit the property and according to Manusmriti,[379] the widow has to manage the paternal property for the son raised through Niyoga and later if male descendants are lacking she is considered to be the heiress to her husband;
The privileges of motherhood are certainly as a rule valid only for mothers of sons; a wife who gives birth only to daughters as well as a barren wife may be replaced.[380] Also the general opinion about the inferiority and the evil propensities of the female sex is to be taken into consideration, according to which the woman can never live excepting under guardianship; in her old age she should remain under the protection of her sons, when a girl she is protected by her father, and when a wife, by her husband.
A gradual independence of the woman in the field of the partition of property is perceptible in the development of the Stridhana. Harita[381] gives a graphic description of the duties of a woman. She should concentrate all her thoughts on her household and her husband, carefully prepare the food, eat what remains after her husband and her sons have taken their meals, wash the cooking utensils, besmear the earth with cowdung, offer sacrifices to the gods, and before going to sleep respectfully embrace the feet of her husband; she should serve him, fan him in the hot season, support his head when he is tired, etc. In her home circle the matron rules absolute specially over her daughters and daughters-in-law, the principle of seniority, the yathaaparvam, is expressly extended also over the female members of the family.[382]
According to this maxim of the privilege of age the eldest son can, as already referred to, be the chief of the whole family in the case of the death of the father or his permanent disability. As the eldest son or brother holds a high place in the rules about salutation and can marry before his younger brothers,cannot be given away in adoption, receives an extra share at the time of partition and can alone offer the Shraadha and other sacrifices of the family, etc., he is considered to be the natural family-head after the death of the father. According to Manusmriti[383] and Mahabharata[384] he forfeits his right of primogeniture if he cheats his younger brothers and according to Manusmriti[385] the eldest brother can appropriate to himself nothing of the common family property without compensating for it to his brothers.
A younger brother or a collateral becomes the head of the family if he is particularly fit to be so, but according to Saankhalikihta, he can be so only with the consent of the eldest brother. Such a property manager, whoever he may be, is rewarded by his brothers for his labour and receives presents.[386]
He may claim however no further privileges and along with the other members of the family he too has to bear the burdens of inheritance such as the maintenance of the widows and the daughters of deceased brothers, marriage of the daughters, initiation of minor brothers, payment of the debts of the father etc.[387]
In addition, the members of the family rendered ineligible to inheritance by illness or corporeal defects etc., are a burden of the inheritance, while on the contrary if a brother though able to work does not work for indolence, he may be compelled to separate from the joint-family with a small compensation. The sons had more difficulty with a father who badly managed the family property and therefore it was in the interest of the family principle not to maintain the patria potestas in all its rigours but also to afford the sons a direct right of protest and a claim to property. Thus the principle was developed that the father and the sons have equal right of disposition on the property inherited from the grandfather.[388]
According to the later texts even the immovables and the slaves acquired by the father himself cannot be sold without consulting all the sons about it and usually when giving away or selling a family property the consent of all the members of the family is needed.
5.4 PARTITION
So long as the property consisted almost exclusively of immovables the joint-property of the family certainly appeared to be the best arrangement suited to the economic condition. Traces are not wanting to prove that even whole villages formerly used the fields in common as it is found in the Punjab even to this day.
At all events, the lists of impartible properties (avibhaajya) in the Smritis, often very comprehensive in themselves, indicate that there was a time when the family property was indivisible. Thus, according to Ushaanas, the income out of (or claim to) sacrifices, fields, writings, prepared food, water and the wife’s property should remain undivided among the relations (sagotra) up to the thousandth generation. Saankhalikhita mentions among impartible properties a house (na vastuvibhago, instead of which however a few commentators read chaasti vibhago). Even according to Brihaspati,[389] the relations (sapinda), whether their property is undivided or partitioned, have equal rights as far as the immovables are concerned, because nobody can give away, mortgage or sell the immovables alone.
If a partition took place, as the will is not known in Hindu law, the only influence the father could exercise on the determination of the shares was to undertake the partition himself. The partition by the father is even a Vedic custom and the passage Taittiriya Samhita[390] which declares that Manu divided his property among his sons, is even specially referred to in the Smritis.[391]
Originally, on the strength of his paternal authority, he could determine the portions just as he liked, but later he was subjected to various restrictions. Whether and on what occasions the father can be compelled by the sons to undertake the partition is doubtful. Thus according to Harita 4.2, the partition can be made against the will of the father if he is aged, insane or sickly. But this passage cannot be found elsewhere and moreover it cannot be well-harmonised with 4.3 where it is laid down that in such a case the management of the property should be taken over by the eldest son.
In other works, such as in the Mitakshara on Yagnavalkya,[392] in the Dayabhaga 41 etc. the same passage is ascribed to Sankha or Saankhalikhita but very often with the insertion of the negative particle na, so that the meaning is quite the opposite and the division of property against the will of the father is thereby altogether forbidden; and as another passage of this author likewise denies the sons the power of partition during the father’s life-time, this reading is probably the right one. Also according to Gautama[393] sons who have extorted from the father a partition of the family property against his will, should not be invited to a Shraadha. For this reason Gautama Dharmasutra[394] allows a partition by the sons during the lifetime of the father only with the consent of the latter. Also Baudhayana Dharmasutra 2.3.8, Naradasmriti 3.3 Brihaspati Smriti 25.1 etc. mention this partition with the father’s consent.
It is also disputed whether the partition should be deferred till the death of the mother if the sons wish to divide after the death of the father. According to Manusmriti 9.104, Yagnavalkya Smriti 2.117, the sons should divide ‘’after the death of the father and the mother” or “the parents”, because, as Manu says, they have no authority over the property so long as the two parents are alive.
Also, according to Naradasmriti 1.36 the sons can never be independent even if they are of age so long as their parents are alive and after the death of the father his authority devolves on the mother and only after her death, on the eldest son; yet the same author also lays down in 13.3 in agreement with Gautama Dharmasutra 28.2 and Brihapatismriti 25.1 that the partition can take place even in the life time of the mother if she is too old to give birth to any more children and in 31.28-31, speaks of the guardianship of the relations and the sons ever the widow.
There was, thus, in any case, a view according to which after the death of the testator the management of the property at first devolved on his widow; perhaps the main purpose of this rule was to provide for such cases where the sons were not yet grown up and the daughters were not yet married what is often mentioned as the necessary precondition for a partition among the brothers. Most authors however are of opinion, expressly or tacitly, that the death of the father is the only precondition for partition among brothers or collaterals. The social death of the father is often considered to be equivalent to his natural death, viz. if he retires into the forest according to the laws of the Smriti or joins a spiritual order of is excommunicated out of the caste.
The manner in which the partition is to be made is determined chiefly with reference to the age of those who are going to divide, at least according to the oldest authors. The most ancient rules are certainly those which allow a special extra share of the family property to each of the sons according to the hierarchy of age, particularly however to the eldest son, and in the case of polygamy also according to the order in which their mothers were married to their father.
Thus according to Gautama Dharmasutra 28.5-8 ,the eldest son should receive 1/20th as preferential share (uddhaara) over and above a pair (of kine and similar domestic animals), a cart along with a yoke of oxen having incisors both above and below and a bull; the middlemost son receives the one eyed, old, hornless and tailless domestic animals if there are more than one such animals; to the youngest belong the sheep, corn , iron utensils, a house, a wagon with team as well as one of each of the (remaining) animals; the residue is divided equally.
While the lists of the items of property mentioned here and elsewhere indicate the almost exclusive pursuit of agriculture, the purely arithmetical calculation of shares in other rules of partition, such as Gautama Dharmasutra 28.9 and Manusmriti 9.112 etc., are applicable also to property earned through commerce and industry. Analogous proportional numbers are used to indicate the shares of inferior, illegitimate and adoptive sons and not only the Smritis but also the Mahabharata in 13.47.4 prescribes a system of partition in the ration 4: 3: 2: 1, specially for the sons of a Brahman by different wives of the four castes, and Vishnusmriti 18.1-40 develops this system casuistically for all possible analogous cases. Yet not only unequal marriages were disapproved already at an early period but also the theory of the right of primogeniture and in general that of unequal division of property met with determined opposition already at a very early period and it was recognised only as a local custom (Apastamba Dharmasutra 2.14.6), beside the theory of equal shares mentioned by all the authors and it is later reckoned among the obsolete customs.
In a partition taken up by the father the patria potestas too of course came into consideration which finds significant expression in the rule of Harita (4.5) that the father is to become a pious hermit or a beggar after the division of his property or retain the greater part of the property or even take back something from the shares of his sons as necessity may arise or even concede still more to the sons. On the other hand, according to Harita 4.4, after the death of the father a partition should be made only in equal shares. Even late authors such as Yagnavalkya (2.114) Narada (13.15) and Brihaspati (25.4) recognise the absolute power of the father to determine the portions of the sons as he chooses. Yet a restriction was imposed on the will of the father by means of the distinction made between the inherited family property and one’s own acquisition; the father might have a free right of disposal only over the latter while the father and the sons had equal right on the inherited property, so that the sons could claim an equal share with the father in a partition (Vishnusmriti 17.1; Yagnavalkyasmriti 2.114, 121; Brihaspatismriti 25.2-4). It is doubtful, whether the rule that the father may reserve a double share for himself is also to be applied only to the father’s own acquisitions.
That the father reserved for himself a greater portion was all the more justified in as much as under certain circumstances he had to provide for his wife and the son born after the partition (vibhaktaja) though of course there is the rule that the partition should take place only when the parents are sufficiently advances in age (Naradasmriti 13.3); there was however difference of opinion as to whether the Vibhaktaja might claim only the property of his father or was also to be provided for by his brother (Gautama Dharmasutra 28.29; Manusmriti 9.216; Naradasmriti 13.44; Vishnusmriti 17,.3; Yagnavalkyasmriti 2.122 etc). In a partition the shares of the grandsons and the great-grandsons shall be adjusted per stirpes (according to father) (Vishnusmriti 17.23; Yagnavalkya 2.120).
The wives and daughters were without doubt originally entitled only to maintenance and it is disputed even if they can retain their ornaments and the presents received from their relations when partition takes place (Apastamba Dharmasutra 2.14.9; Manusmriti 9.200; Vishnusmriti 17.22). According to Vishnusmriti, 15.31, the brothers have to provide for the marriage of their sisters in a manner befitting their position and according to 18.34 they must also give them an adequate share of the property and to the mother they shall give a son’s portion. The latter rule is given also by Yagnavalkyasmriti 2.123 and in 2.115 he affirms that even when the father undertakes the partition each of his wives should have a share equal to that of a son excepting when they have previously received presents by way of Stridhana; according to 2.124, a daughter should receive ¼ of a son’s portion meet the expenses of her marriage. Naradasmriti 13.12 speaks of a partition only among the brothers: they should give the full share of a son to the mother and a smaller share to the unmarried sister, they should provide for the wife and the daughter of a brother who has no son-the latter however only till her marriage. Manusmriti 9.118, Brihaspatismriti 25.64 again speak of the fourth-part share of the daughter, but those commentators are probably right who take this term solely to mean a sum sufficient to cover the expenses of the marriage and the wife’s share too, which is equal to that of a son, is explained to be nothing more than a life annuity in conformity with the rules about the dependence of the sex,
According to Gautamadharmasutra 28.43, Baudhayana Dharmasutra 2.3.37, those who are incapable of work or trade on account of physical, spiritual or moral defects are excluded from the inheritance such as, for example, those who are blind, dumb, deaf, lame, impotent, castrated, half-witted or deranged in mind or those who are suffering from an incurable disease, lepers, and those who quarrel with their father or have cheated their brothers or in general have committed a heinous crime which is punished with excommunication out of the caste, etc.
Such family-members who are refused inheritance can claim only maintenance for themselves and this claim too is refused in the case of the excommunicated person (patita); however, the Patita may regain his position in the caste by performing the prescribed penances and thus the ample grounds for excommunication probably, on the whole, served only to bring profit to the Brahmans by means of the penances prescribed by them.
Only later authors like Narada and Brihaspatai refer to the authentication of a partition by a document (vibhaaga1pattra). A disputed partition may also be ascertained by circumstantial evidence, such as if the relations perform the domestic sacrifices and their businesses separately, if each of them has his own household or if they possess movable and immovable properties and slaves separately, or give evidence for one another and go security for one another, which is allowed only to those relations who have divided their properties, etc.
In the epoch of commentators very important local differences cropped up, specially between Bengal and the other provinces. This may be taken to be an indication of the fact that also the differences in the Smritis regarding the law of partition are for the most part of almost wholly based on the difference of deshadharma. The customary law too shows various phases which often perfectly agree with the Smritis. Thus in the customary law of the Punjab the father’s absolute authority to dispose of the immovable property is curbed by the right of the sons and other agnate relations but not his authority over movable property and that again only with reference to the immovable property which has been inherited in contradistinction to his own acquisitions. In most cases only the sons or the nearest heirs, in Sialkot however all t he descendants of the same great-grandfather, have the right of protest if the father sells the property. The father cannot be compelled to undertake the partition during his lifetime, but it is equivalent to his death if he enter a religious order and partly also if he changes his religion and loses his caste. The head of the family may divide the family property according to his will, all the same whether further children may be expected or not, only, if the division is unequal, it need not be acknowledged any longer after his death when every member of the family entitled to inheritance may demand a partition. The women receive no share unless on failure of male descendants.
CONCLUSION
In concluding this study, it can be safely asserted that although Classical Hindu Law might not in all respects and in today’s context and needs be as perfect as one could desire, still it would not compare unfavourably with most of the developed systems of jurisprudence.
Classical Hindu Law, in its various branches is probably the most detailed system of law to be discovered. Its conception of legal liability is broad and perspicuous, and although it has generally retained the eighteen divisions of topics of litigation as described by Manu, that has not in any way stinted its growth or prevented it from embracing within its range the various aspects of juridical relations which the complexity of human affairs may usually bring about.
As explained before, Classical Hindu Law is only a branch of the Dharma that one is supposed to always obey. And within this branch too, we have observed how each topic has been dealt with minutely in the Dharma texts. For instance, with respect to the adjecive law, apart from the hierarchy of courts that we usually expect any legal system to have, even specialised kinds of arbitral tribunals have been provided for; in criminal law, there is a clear categorisation of the kinds of crimes and their punishments, the methods through which the punishment is to be met out, the reformation of criminals through Prayaschitta, etc. Rules have been also provided for matters that would be considered purely private in today’s times.
The lawgivers surveyed have not been found wanting on logical consistency. Their works have been eminently logical with subtlety of discrimination and analytical skill and accuracy in defining legal conceptions. No principle has been enunciated without perceiving what it really involves and the deductions, which logically follow from it.
Be it the refined rules of ratiocination of Gautama, or the subtle principles of interpretation laid down by Jaimini, nothing is beyond logical scrutiny. There will be no work with ipse-dixitism; all positions have justified against all possible controversy and blunders.
Care has been taken that the rules so laid down may not be unreasonable and detrimental to the interest of the community at large. Law exists for the benefit of the people; according to the Vedic precepts, it is a manifestation of the eternal cosmic order that governs this universe, and it justifies itself by being conducive to the welfare of the people who are governed by it. The king cannot override it; the judges cannot dispute its authority; and the people are bound to obey it not merely because it has the support of temporal authority, but because it draws its inspiration from the fountain of wisdom.
This must not be supposed to mean that there is no rule of Classical Hindu Law which to a modern mind may seem unreasonable. However, mere errors in detail can furnish no reason for ignoring the guiding principle which actuated our law-givers in enunciating and expounding the law.
Textual references have been provided which go on to show how the lawgivers themselves were open to change and amends in the law and the rules prescribed them according to the Kaala, Samay and other parameters. Notwithstanding the claim to revelation and divine origin of the laws, the Rishis by ordaining that the decision of good men should have the force of law, admitted that their law might be made more perfect. There has been provided a long list of abrogated practices in the Aditya Purana. All of this undoubtedly throws light on the flexible character of Classical Hindu Law.
It is no doubt true that the lawgivers meditated upon the potentialities of existence beyond the world with an earnestness unsurpassed in the history of philosophy, but surely that did not make them forget the concerns of the worldly life, least of all the necessity of a sound legal system.
Unfortunately, the adoption and continuation of the legal system as established by the Britishers ultimately stifled the growth of Classical Hindu Law and at the present day, very few harbour any curiosity to enquire into its nature, its development. It is true that a lot of topics initially proposed to be included under this study have not been able to find mention here, and even those that have been included could have been elaborated further. However, the vastness of the Dharma texts prevented such an expansionist, umbrella study.
BIBLIOGRAPHY
- 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.
- 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
- 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.
- Commentaries and Digests
- Dayabhaga– Jimutvahana, ed. by Pt. Jivananda.
- Medhatithi-vide Manusmriti.
- Mitakshara-Vijnaneswara, Nirnayasagar Press.
- Smritichandrika-Devanna-Bhatta, ed. by J.R. Gharpure.
- Other texts
- Kautilya’s Arthashastra-Dr. Shama Shastri Edition, Mysore University Oriental Library.
- Nirukta-Yaska, ed. by Roth.
- 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.
[342] ManuSm 9.31-56; ApDh 2.13.6 VaDh 17.6-9; BaudhDh2.3.33-35.
[343] VaDh 1.29.34.
[344] 1.6.7.
[345] MahBh 9.90.93.
[346] MahBh 1.73.13.
[347] 1.73.27.
[348] MahBh 1.73.11.
[349] 9. 98.
[350] ManuSm 3.51-54
[351] ApDh2.13.12
[352] 1.20.4.
[353] ViSm 17.18.
[354] 9.100.
[355] 9.97.
[356] ViSm 58.10.
[357] BaudhDh 2.3.11-35; GauDh 28.18.32-34, VaDh 17.1-39; ViSm 15.1-30; ManuSm 9.127-147; YagSm 2.127-132.
[358] 1.120.32.
[359] 9.127—140.
[360] 13.44.15.
[361] 17.15.
[362] NarSm 5.37.
[363] BriSm 25.33-41.
[364] VaDh 17.31.
[365] BrSm 25.6.
[366] ManuSm 9.111.
[367] 13.38
[368] 17.51.
[369] ViSm 17.1; YagSm 2.114.
[370] BaudhDh 1.11.9.
[371] GauDh 28.3; ApDh 2.14.6; NarSm 13.5; MahBh 13.105.17.
[372] Brihaspati
[373] 1. 32—42.
[374] 4.3.
[375] VaDh 15.2.
[376] 2.13.11.
[377] ViSm 5.163 ManuSm 8.389 YagSm 2.237.
[378] 13.105.15.
[379] 9.217.
[380] ManuSm 9.81.
[381] 3.3.
[382] GauDh 6.3 MahBh 13.105.19.
[383] 9.213.
[384] 13.105.7.
[385] 9.124.
[386] NarSm 13.35.
[387] NarSm 13.26.
[388] ViSm 17.2; Yag Sm 2.121.
[389] 25.93.
[390] 3.1.9.4.
[391] BaudhDh 2.3.2.
[392] 2.114.
[393] 15.19.
[394] 28.2.
