HINDU LAW 81

to the world's most adaptable and. sophisticated people. 'Hindu'

does not, of course, mean an Indian, but a person belonging to a
community like an originally Indian caste (even if not in India) or
tribe, family, or other social unit (including Sikhs and Buddhists),
which does not profess any of the Muslim, Christian, Zoroastrian
HINDU LAW (Parsi), or Jewish religions. 'Hindu' means in practice an Indian by
racial extraction who is not a member of any such non-Hindu com-
J. Duncan M. Derrett munity. A child of a non-Hindu father by a Hindu mother may well
be brought up as a Hindu, and will normally be governed, unlike his
HINDU LAW is applied as part of the law of the land to over father, by the Hindu personal law.
400,000,000 Hindus in India, Pakistan, Burma, Malaysia, Singapore, To be a Hindu for legal purposes it is not necessary that the indivi-
Aden, Kenya, Uganda, and Tanzania, but not (curiously) in Ceylon. dual should hold any belief, though the vast majority of 'Hindus'
Its name derives from its being applied to Hindus rather than from adhere to the basic religious postulates of the indigenous Indian
its historiGal connection with a religion. In those territories it is a civilisation. A few of the more generally significant of these will
personal law (as is Muhammadan law) in the sense that the individual appear below, for we should not ignore them. Attempts have been
carries with him the law of his religious community, which the law made to avoid responsibilities by pleading that the individual did not
itself defines as that of the 'Hindus.' The statute law, except that believe in the Hindu trinity of gods or by pleading a conversion to
which amends personal laws, will be common to all inhabitants of the another religion: happily these attempts have uniformly failed.
territories concerned, as also will be the rules of common law and Conversion to Hinduism is recognised for legal purposes, provided
equity in so far as these were formerly introd:.lced by the foreign that the conversion is a reality, so far as concerns the social group to
rulers and continue in vigour. which the individual purports to belong.
Hindu law is not a territorial law, and, subject to variations which The law is as old as the Indian civilisation, and traces of the rules
are Qf little intellectual significance, a Hindu, so long as he remains a are found in the Vedic literature of about 1500 B.C. Respect for elders,
Hindu and does not voluntarily subject himself toa general statute mercy, charity, and good government are eloquently insisted upon in
with contrary effect,l will be governed by this system whether he the famous inscriptions of the emperor Asoka, 2 whose military and
lives in, e.g., Delhi, Rangoon, or Dar-es-Salaam. As there are two subsequently missionary career in the third century B.C. is somehow
major 'schools' of Hindu law, differing in minor aspects of marriage of a piece with India's exhortations to herself and others in modern
and inheritance, and certain even less important differences of sub- times. The fundamental rules of law and their spiritual supports are
school within the major school as to, e.g., females' rights in family available in texts which are usually dated between 500 B.C. and
property, it would be more correct to say that a Hindu carries with A.D. 200. Exact chronology is defied by these traditional materials
him not merely 'Hindu law' but rather the Hindu law of his school or which had so long a working life. Some of the postulates-as, for
sub-school, but the distinction hardly signifies in the context of this example, the division of function between the judge who reached,
book. In territories other than those listed above, Hindu law is and the assessor who recommended, the judgment-may have had a
referred to as the law of the domicile in the appropriate context centralised origin: the basic structure can hardly have emerged in
where a con1lict of laws arises. It may be referred to in order to separate areas and periods independently. The 'eighteen titles of
determine the rights and capacities of non-Ceylonese Hindus when law,' or 'footings of litigation' as the chapters of court-law are called,
these, or their successors in title, litigate in aQ .appropriate matter must have been the child of one brain, or of a small number of brains
before a Ceylon court; and nowadays the huge number of Indians in in one place. But the materials themselves developed independently,
Britain gives rise to frequent proof of Hindu law before our courts. called forth by the urge felt in many social groups and small king-
The matters in which Hindu law governs Hindus will be mentioned doms to be better informed about duty, which is the system's key
below: they constitute the scope of their personal law. word. The intellectual elite, the Brahmin caste, developed this science.
Those who are governed by Hindu law range in race and intellect It was called dharma-slistra, 'science of righteousness.' It contained
from the geographically most remote and historically most backward • See N. A. Nikam and R. McKeon, The Edicts ofAsoka (Chicago/London, Phoenix,
1 Special Marrltzge Act, 1954. Marri~ge under this statute takes the individual out of 1966). \
the Hindu law for aU purposes except membership of the joint family and adoption.
80
 82 AN INTRODUCTION TO LEGAL SYSTEMS HINDU LAW 83
many rules of government and law, besides many intricate provisions far as the natural conservatism of lawyers and the especial caution of
which would not be tolerated by, nor be useful to, others than the Privy Councillors would allow.
Brahmins themselves, to whom ritual purity was important as a The Anglo-Indian legal system as a whole was not a little seasoned
qualification for employment or pension. Naturally no one asked with the contribution of Scottish members of the Privy Council. It
then, any more than anyone asks now, to be governed by a law was accepted at its face value by the Indian public, whose confidence
which was not righteous, and righteousness (being an ideal) was hard rested upon a widespread belief that their judges turned first for their
to divine in a complicated issue. There was ample work for juridically law to the ancient books containing the distilled learning of the pre-
interested scholars, and their products are available in numbers British periods. Not a few of these had, by 1864, been translated
and weight from the fifth century of our era to as late as the competently from the original Sanskrit.
1830s. However, elements in Indian society envied English freedoms as
When the Portuguese, the French, and the British acquired ter- against Indian self-restraint and conservatism, and gradually
ritories in India, and especially when the British East India Company piecemeal amendments were made to enable people' to live less
became de faCto sovereign of Bengal, Bihar, and Orissa in 1765, the hampered by the ideals of altruism (living for the people to whom
need to administer justice devolved (however unpalatably) upon the you 'belong' rather than for yourself) which, at bottom, had in
unqualified and at first reluctant European adventurers who found practice kept Indian castes apart. Tentative steps taken before
themselves vested with political power. It will be obvious that it is Indian Independence in 1947 led to a desire for thorough reform, and
I highly undesirable that judges should lay down law which will not this was carried out in 1955 and 1956. But modern Hindu law in
apply to themselves or their friends; still more that they should India is only partly founded on the so-called 'Hindu Code' of those
judicially legislate for folk they feel inferior to themselves; but in the years. Aspects of the personal law were drastically altered, but what
circumstances no alternative was possible, and much of the history of of the remainder, especially that governing the joint family which it
Hindu law, especially its alleged rigidity during the British period, is was not thought prudent to touch? This remained as before, subject
to be attributed to this. Parliament soon supported the East India to judicial construction of the 'Code.' To the dilemma this creates we
Company, and eventually courts of an English type were set up must return. Meanwhile the contemporary Hindu law has its roots
throughout British India, which itself rapidly grew in extent. These in the dharmasiistra; in the Anglo-Hindu law which is still to be
courts had from the first the advantage of a fused system of law and consulted outside India and rules even in India in the chapters un-
equity.s Later the states under British paramountcy set up courts of touched by the 'Code'; and in the statutes forming the 'Code' itself.
their own, following the procedure and the law of the British Indian The practitioner must ask whether the 'Code,' or any of the enact-
courts. Appeals from British Indian High Courts were heard by the ments of East African legislatures, is applicable to the problem
Privy Council in London, and from French Indian territories before him; if not he will consult the Anglo-Hindu law. In the rare
matters went to the Cour de Cassation in Paris. The dharmasiistra cases where the point is not covered by unimpeachable judicial
could thus hardly be expected to stop still, though the foreign judges authority he may have recourse to the original treatises of the
used to obtain opinions on the personal law from native professors dharmasiistra, taking care to observe the interpretations placed upon
appointed to the courts for the purpose (the Pandits) up till 1864, them by jurists' whom the courts have consulted, especially that
when judicial knowledge of the system was (with some temerity) remarkable polymath, P. V. Kane.
assumed. Indians were exposed not only to a partially competent The sources of Hindu law are sometimes complicated and not
judiciary but also to a new economy and to the social effects of such seldom recondite. But could it have been otherwise? Native lawyers
changes. The French purported to keep in touch with the customs of controlled the system for not less than two millennia, and Europeans
the people. The British developed 'Anglo-Hindu' law, which, while and western-trained Indians have administered it to a rapidly
based ,on the texts and commentaries by native authors, gradually changing society for a further two centuries.
became a new entity. The Privy Council made it in a myriad of cases, Thus Hindu law has always been a book law. The written texts of
while no one was responsible for overall clarity or consistency. the leading fundamental jurists, namely those passing under the
Principles of common law, and more especially equity, were injected, names of Manu, Yajiiavalkya, Narada, Brihaspati, and Katyayana
sometimes unconsciously, and the dharmasiistra was reanimated so (all of whom wrote before the end of the third century A.D.) were
I See below, p. 177.
themselves the fruit of attempts to collate, combine, and systematise
84 AN INTRODUCTION TO LEGAL SYSTEMS HINDU LAW 8S
maxims, propositions, and reflections (not to speak of the inevitable their topics and subheadings, he coloured them by their very juxta-
and sometimes beautiful exhortations) which had already been position, silently adjusting their scopes, interpolating in his own
handed down as an oral 'literature' for centuries. For example, the voice only the occasional explanation. of an obsolete or ambiguous
maxim 'things enjoyed through favour are never lost to their owners' Sanskrit term.
needed to be moulded and formed into a sufficiently weighty part of Commentaries were written for the guidance of penance-com-
a developed law regarding acquisition by a non-owner possessing mittees and for judicial assessors. The basic text was chosen for its
adversely to the true owner. The jurist's task was to take an institu- local currency and for the scope it gave the commentator. While
tion, to fix it in words, to categorise it, stamping it with approval, or nominally expounding it he would enrich it with explanations and
expounding it in such a manner as to limit its practice so as to con- supplement it with quotations from other smritis, which, as often as
form to overriding moral requirements. Marriage by capture, and the not, threw more than mere illumination upon the text-they some-
remarriage of the deceased's brother's widow, are instances where times added a new dimension. He often discussed variant readings
ancient customs, enshrined in complacent maxims, were subjected to and different juristic interpretations. Some of these hide, under
tendentious revision by zealous reformers. discreet and technical evaluation of sources, an attempt conclusively
Jurists had a wide grasp; their insinuations could turn an insecure to deal with a practical issue. Rightly, established authors refuse to
custom into a regulated-but then secure-institution of law. The reconcile divergent texts, or to elaborate on well-known propositions,-
mental power required 'was of exceptional dimensions. Succeeding when the subject-matter has definitely ceased to be of practical signifi-
generations refined and explored but did not question the essentials. cance: some rules relating to impurity or penance, to ordeals, or to
One can sense a lack of originality; but their inheritance, which had discriminatory punishments have fallen totally out of use-and the
to be grasped as a whole, dwarfed attempts at improvement. Some scholar declines to include them in his bulky work. Men wanted to
of the ancient rules which survive in the books seem footling; but a know their law shortly and comprehensively. VijiHinesvara's Mitiik-
primitive society was not offended by the incongruous if it expressed sharii combined terseness with dialectical minuteness, professional
what they took for granted and thought important. skill, and educational endeavour, and it became popular throughout
The Manu-smriti, the 'Laws of Manu' to which Sir William Jones India (early twelfth century). Not all its successors valued terseness
gave celebrity in 1794 and which should be consulted now with where juridicial skill could find a public,- and Devanna-bhatta's
Georg Buhler's translation, is a work of elaborate editorship, Smritichandrikii (thirteenth century) is a vast affair, while even more
requiring in its exponents as much interpretative skill as the author vast-is Mitra-misra's Viramitrodaya (seventeenth century)-the one
himself possessed. The maxims and poetical moral precepts which he from the South and the other from the North of the peninsula.
rightly expected his readers to memorise were seldom of his own Some five thousand authors worked prior to the British period
composition: what he took from antiquity, the folk-memory of a and shortly after it commenced, but not all their texts have
self-conscious prestige-bearing element in the population, he fitted so survived.
as to accord with the needs of his own age. The verses were singly and Much more effort would have been put by the foreign powers into
collectively known as smriti ('memory'). They were the bed-rock of learning the dharmasiistra if all the Hindu law had been enforced
juridical argument, the scholars' armoury, the committee of dis- after they acquired their jurisdictions. It turned out that it would be
cipline's bible, the judge's reasons. Though they were evidently applied as a matter of course only in the following matters: adoption,
composed by men, they could be trotted out like holy scripture, a inheritance, and succession, the joint family, guardianship, mainte:
status understandable in materials of such great age. nance of dependants, marriage and matrimonial causes, questions of
Smritis tended to proliferate, and bogus examples could inge- caste discipline (which were soon placed primarily within the castes'
nuously be cited as if from an ancient source. If they met the needs of own care), and religious and charitable endowments and trusts. Part
the relevant social group they could not be contradicted. Centres of of the law of debts was allowed to remain Hindu in character; and
scholarship; such as Benares, to which students from every quarter the common law of India relating. to benami transactio-ns, that is to
resorted, specialised in collecting and digesting such smritis. The say, nominal transfers to persons who were bare trustees for the
digest-maker certified the genuineness of his collection. Such a on~ actual purchaser, and also relatin~ to pre-emption of landed pro-
was Lakslimidhara (tenth-eleventh centuries A.D.), characteristically perty' survived as topics of indigenous law. A comprehensive search
a minister of a Hindu kingdom. While he arranged his material under "See p. 38, n. 11. In India co-owners but not (now) neighbours have this right.
86 AN INTRODUCTION TO LEGAL SYSTEMS HINDU LAW 87
through the Indian law books was never made, and government took developed. There was no effective provision for attachment and sale
hardly any part in acquiring, publishing, or translating manuscripts of a debtor's property: indeed, attachment before judgment though
of the dharmasiistra. Works on specialised topics such as inheritance present in some ancient treatises had not been developed. It was an
and adoption were transiated, but sometimes only in part, and expedient the usefulness of which soon struck English lawyers, and it
without reflecting the balance of Hindu scholarly opinion. A had repercussions on the substantive law, as so many movements in
work commissioned from the very learned Jagannatha (fl. c. 1790) the realm of procedural law tend to have. To substantive changes due
did contain a substantial treatment of contracts,15 but, largely to the British we shall return presently. . .
because of its intellectual modesty, it was not appreciated. It does The resulting amalgam deserved, and acquired, a long series . of
l!ot surprise us to find that as Indian businessmen dealing with authors in English, not to speak of the occasional French treatise.
Europeans acquired a tolerance of English law, the Hindu law of
Nowadays the authors who command the attention of practitioners
contracts withered away before its English counterpart, from which
include the formerly academic treatise of J. D. Mayne, who started as
it did not differ radically, and was eventually replaced by Indian
a professor of philosophy in Madras. but found law more profitable;
statutes.
the summary . of the case-law with notes of the effe·~t of statutes
The case-law based on the Sanskrit sources never contemplated
compiled by the indefatigable Parsi, Sir Dinshah F. Mulla; and the
diverging from them. But the system was strengthened and made
more recent but highly readable and comprehensive textbook of
more easy to imbibe by importations from the English legal at-
N. R. Raghavachariar. The differences of opinion between the High
mosphere into which it had been, as it were, transported. It was
Courts, particularly those of Calcutta, Madras, and Bombay ~ give
asked, for example, whether a killer could succeed to the estate of his
rise to intriguing problems as to the requirements of the hypothetical
victim. The Sanskrit texts appeared to be silent on the point. The rule
'true' Hindu law, which the Supreme Court is now steadily clearing
excluding unrighteous persons from inheritance was not cited in any
up.
book on the judge's table, and the common-law rule was applied as a
stop-gap. Naturally Indian jurists would not have allowed a killer to An academic interest in India's ancient jurists has never failed since
succeed: ·in fact, their outlook, tempered with .the normal deference Europe first became aware of their existence. Their ideas and institu-
to local wisdom, would preclude ' even disobedient children from tions cement the accepted linguistic and religious bonds between
inheriting. But this went too far. The Anglo-Indian judges could not the Aryans of India and their cousins who founded western civilisa-
measure the appropriate degree of disobedience, and that would-be tion. But an academic interest in modem Hindu law was slower in
rule was silently abolished. A further example would be that of the growing, as foreigners tended to stumble at the amateurish in-
unchaste widow. The siistrli intended her to be divested of her hus- congruities illustrated above, and the Indian public was uncomfort-
band's estate, and custom would have agreed. But the courts in ably digesting statutory amendments of the ancient system. Teachers
British times were hostile to the divesting of a vested title, and averse are not agreed as to what the spirit of the new system is, or whether
to a rule which would encourage perjury by those of the woman's it has intellectual continuity with the past. Advocates, who are much
'in-laws' who would take the property in default of her. Accordingly, nearer to the effects of the legislation, prefer, as usual, to give their
it,was decided that though a widow would lose her husband's estate minds to winning their clients' cases.
if she remarried (should any caste permit her to do so), and she might The pace and impact of the controversial legislation . may be
not inherit at all if she were unchaste at the time of her husband's compared with that in a comparable field in English law. It is well to
death, her unchastity the day following his death could not deprive look into this before we go back, as shortly we must, to the constant
her of the inheritance. This illustration of the weakness and ingredient. in Indian legal thought, the dharmasiistra itself. For the
complexities of the Anglo-Hindu system-an Instance now happily standing as well as the pervasive quality of the latter is illuminated by
obsolete in India-will serve to give an adequate impression of the attempts to rescue the public from its detailed rules. We may take
the result of applying an Asian book-law at the hands of foreign as example the rights of women, always a sensitive issue. In 1929
judges. . sisters were made heirs on an intestacy, fot the first time in some
Meanwhile there was a positive aspect. The sources required to be schools and much higher in the order of priority elsewhere: In 1937
widows were given for the first tifne the right to inherit along with
Ii H. T. Colebrooke, A Digest 0/ Hindu Law Oil COllt'IIcts and Successions with a
Comm~IIta,y • •• ,vol. 1 (Madras, 1964). the decedent's sons, and to take their deceased husband's undivided
interest in property jointly owned by the male members of the agnatic
 HINDU LAW 89
88 AN INTRODUCTION TO LEGAL SYSTEMS
merely altering so much of the former law as its plain words or
family.6 In 1946 wives were allowed the right to sue for separate necessary intendment required the widow was entitled to her share of
maintenance (i.e., out of the joint-family home into which they had the inheritance, in estimating which her own rights to a quotient
been given, willy nilly, in marriage) and for maintenance in cases of must first be recognised. 7 The solution which gives her the accumu-
hardship, only some of which had been recognised earlier. In 1949 lated rights is difficult to justify on strict legal grounds, but probably
the wife's right to a summary order against her husband for main- represents Parliament's intention.
tenance was modified so that she might succeed even if she refused to One could go further and ask whether the Hindu Succession Act,
return home, should her husband have married again. In 1947-1949 the Hindu Adoptions and Maintenance Act, and the Hindu Minority
the then Bombay and Madras States deprived the Hindu husband of and Guardianship Act (all of 1956) are 'Hindu' in any substantial
his right to marry again in the lifetime of the first wife irrespective of sense. We have illustrated a Hindu feature in the limitations of the
her consent, and gave spouses for the first time the right to judicial divorce law. The Succession Act retains in its order of distribution on
divorce: Hindu marriages are thus compulsorily monogamous. In intestacy features, such as unlimited claims by even the remotest
1955 the Hindu Marriage Act extended these new rights of women blood kindred and the general preference of the kindred through the
throughout India, enlarging at the same time the scope of choice of male line over equally near kindred through a female line, features
mate by reducing the prohibited degrees, which had been exception- which are explicable only against the background of Hindu notions
ally wide, and providing a comprehensive scheme for matrimonial of inheritance. It is open to argument whether an adoption by a son-
relief approaching a Western model. It omitted, however, to allow a less man under the Hindu Adoptions and Maintenance Act can give
divorce immediately on the grounds of adultery or cruelty. The Hindu rise to rights similar to those formerly afforded to an adopted son
temperament would, in 1955, not go further than to allow judicial under the old law. There are decisions going far in that direction
separation on such grounds, though after two years a divorce might including a recent ruling of the Supreme Court which some feel
then be had o'n the ground of what amounts to a total breakdown of stress unduly the tendency of the traditional ideas. However, it 'is a
the marriage. In 1956 the Hindu Succession Act provided that wives demonstrably Hindu feature that a man cannot adopt unless he has
(and mothers and even married daughters) should share on an in- no, direct male lineal descendant to make offerings to deceased
testacy in all a male decedent's property, both that which was sepa- ancestors, and that no Hindu of either sex may adopt a child of the
rately acquired by him or the interest which he had in joint-family other unless there is at least twenty-one years' difference in age be-
property. The same Act turned the former limited tenure of property tween them. Indian critics minimise the Hindu features and enlarge
available to females (who were thought previously unfit to have the on the manifest departures from the Anglo-Hindu system to which
absolute disposal of property in general, except for their dowries and they were used. The whole question is important, as India has
paraphernalia) into an absolute estate-producing a temporary undertaken the task of codifying all her family laws, and possibly all
confusion which the reader may imagine. the ground at present covered by personal laws. The personal law of
The fair sex having been treated with this overdue gallantry, a the majority community is bound to be the basis for this, and unless
problem came before the courts for the first time in the 1960s which its nature is understood little progress can be made towards a
characterises the present position of Hindu law. It became necessary workable 'civil code' which the Indian Constitution promised in
to calculate the extent of a husband's interest in family propeny 1950.
when his share passed to his heirs on his death. Should the court take Interpretation is clearly as vital an art now as the rules oflaw them-
into account the ancient claims of a mother or a wife to a share if selves, and here India has a very long experience. It was argued
the father divided joint-family property between himself and his plausibly that the traditional rules of interpretation of texts resembled
sons, who, at Mitakshara law, had a birthright in that property the English aids to construction of statutes and documents: indeed, it
along with himself? If the new law exhaustively represented the would be odd if some common ground were not covered even though
women's rights an extra share would not need to be made available to
the widow by this method of calculation. If it was to be read as 7 F dies intestate in 1957, leaving a son, S, and a widow, W. If F's share is one-third
(allowing W her ancient right to a share when F separates) Sand W will take one-sixth
each by inheritance. If the share is one-half (ignoring W's right at that point) Sand W
• If F died in 1938, leaving two sons, SI and S2, and a widow, W, F's one-third will take one-quarter each. In the first case W will have one-third (her share under the
interest in the property jointly vested in F, SI, and S2 would pass without unlimited old law) and one-sixth, and will be on an equal footing with S. In the second case W
power of disposal to W. Had he died in 1936, W would have taken nothing beyond her will have only one-quarter.
subsisting right of maintenance.
90 AN INTRODUCTION TO LEGAL SYSTEMS HINDU LAW 91
the material to be construed was so different. In the dharmasiistra in literature of a non-sacrificial nature. By the sixth century B.C.
propositions of logic, of various ages, influence the exposition of the the fundamental mimiimsii code by Jaimini was available, and from
maxims of law. The maxim 'Unequal things should not be treated as commentaries built on it we find that maxims originally meaningful
equal' is often called upon. Where sexual familiarity is penalised as only in sacrificial dilemmas were early used in secular situations.
well as adultery it is reasonable that a lesser penalty should be im- The jurists make constant use of them. An example would be the
posed for offences short of adultery than those to be imposed for the visualisation of the rights of an adopted son as those of a substitute
latter. Likewise, should the law prescribe mutilation as the penalty which .might in favourable circumstances entirely represent the
for theft of property not of very high significance and should death principal: for all rituals involve the priest in the query whether some
be 'prescribed in other sources for the same offence, logic enabled the substitute will do either for the correct substance ' or the correct
jurist to know that the death penalty was reserved for persistent formula or officiant. Another would be the right to dispose of pro-
offenders-though the text itself may not say so. perty after death; another again the effect iIi secular contexts of
H a text tells us that land is lost to its owner when it has been in the prohibitions against earning by reprobated means; or the implica-'
undisputed possession of another for twenty years it will be objected tions of absolute title in property.
not only that such possession is not listed among the causes of pro- Maxims are used which had a popular origin. The maxim of the
perty (such as gift and purchase) but also that though it is urged that Staff and Loaf operates like our reasoning a fortiori. If a Brahmin,
posseSSion is evidence of property, it is plain that what evidences a whose purity must be secured at all costs, is debarred from an act,
thing cannot actually cause it to come into existence. except in a time of distress, it does not follow that castes of less
Taking isolated verses as one's guide can be misleading. The jurists ritual purity, such as the Slidras, the servile classes, are automatically
insist on reading each text in its immediate context and in the light of debaued. But if a Slidra is prohibited it may well be that the castes
preceding and following chapters. This at times restricts and at times initiated into Vedic learning are prohibited on the basis of the Staff
develops the meaning of the bare words. Particles such as 'also' and Loaf. If we find a stick has been gnawed upon which doughnuts
enable the reader to judge that unspoken elements were also intended are carried, and the doughnuts are gone, we can presume that what
by the .smriti-writer. Words used with some particularity .may be was able to gnaw the staff gnawed the doughnuts: acts of greater
used as illustrations only. 8 The lists of offences and punishments in severity are thus prohibited where an act of lesser severity is pro-
the criminal-law sections are long; yet where an offence not previously hibited. Less frequently used, but equally interesting, is the maxim of
mentioned is found in the penance section, the jurist reasonably the Crow's Eye. It is a rule of mimiimsii that no sentence may be split
concludes that the offence has been prohibited, a somewhat obvious and no text can have more than one meaning. Jurists may argue what
inference but a necessary one, as without the prohi~ition one might that meaning is, and in deriving their meaning may torture their tyxt,
take a chance as to whether a penanCe might be called for. but two inferences of the same type cannot be drawn from the same
Rules as to the construction of contradictory texts come from the sentenc.e on the same occasion or indeed on different occasions. But a
mimiimsii. Various ingenious methods of reconciliation are available word in the text may be interpreted so that'it is· taken with two por-
in that quarter. It is an intriguing science originally an adjunct to tions of that sentence, so that with the aid of the word each in turn is
Vedic rituals. The Vedas contain hymns and ritual instructions, and it meaningful. A crow has only one eye (who has seen both eyes of a
was important to know which words were injunctive, which merely crow?), and this apparently functions on both sides of its head (!):
gave advice (the neglect of which might or might not have serious text-writers may follow this in making the occasional word do duty
results), and which were merely declamation. Incongruities were twice over.
smoothed out in the specialist's actual performance of rituals, but The mimiimsii teachers know how to classify texts exhaustively, a
maxims of interpretation were eventually formed into a system when it vital task. Injunctions, positive and negative~' permission, regulation
was realised that the problems of using Vedic texts had counterparts of what might be done in various ways, exceptions to prohibitions,
contradictory texts raising the inference of an alternative, and purely
• The fint may be illustrated by the comment upon Yiji'lavalkya II. 13S ('The wife, facultative rules: 9 these are some of the types recognised. Some texts
ana the"dauahten also ••. take the property ofa deceased sonless man .• .'), where the
word 'also' il held to imply that a daughter's Ion is an heir after the daughter. The • A 'facultative' rule shows how a thing you have determined to do may be done: it
IeCOnd may be illustrated by Manu VIII. 28S, where it is laid down that a fine must be inferentially sanctions the'! doing of it in that way, but it does not enjoin that it should
impaled for injurina 'treeS': commcatators say that 'trees' implies all plants. be done.
92 AN INTRODUCTION TO LEGAL SYSTEMS HINDU LAW 93
contain an injunction, a facultative rule, a declamation,IO and even a The standard of such reasoning, it will be observed, was intellectual
reason bound up together. The mfmamsa-trained jurist must know and moral, and the dharmasastra was above suspicion of partiality.
which is which and the implications of each. When a point is repeated Acceptance of the dharmasastra as 'true' law was a mark of prestige-
within a continuous smriti composition, like Manu, he must be abl~ to bearing classes of society. It might have been otherwise if the law
detect what is advice to the reader, emphasis, a subtle new point, or (if had been founded upon expediency. But we must clarify what part
all else fails) mere repetition. Reasons are suspect. We are told that the was played by convenience, for it must not be supposed that the ideals
Brahmin must not drink a liquor resembling whisky. At the same time of the dharmasastra were automatically and invariably enforced; nor
we are told that if he does so he will fall into dirt or utter sacred texts must it be suspected that for want of such enforcement the system
unawares. If this is a reason it would follow that Brahmins who can was not a real system of law.
hold their liquor or consume some antidote to intoxication may drink. The judicial process took the teachings of the scholars into account,
The jurists explain that it is not a reason but a declamation intended but no judgment could be given unless general questions of public
to deter Brahmins from drinking, which is absolutely forbidden. policy had been considered. The stability of the kingdom, the security
A further distinction of great importance is that between the 'seen' of the state, and the effects of a particular ruling upon valid local,
and the 'unseen' rule. A 'seen' rule is one which is intended for guild, or even family customs must always be looked to. Upon this
secular purposes, as that sons should inherit rather than the widow or the dharmasastra itself insisted.
parents or that certain. offenders should be banished (a lesser The British assumed that the book-law was binding upon all
penalty might be a sufficient deterrent); an 'unseen' rule is one that Hindus, unless a custom could be proved to the contrary. This made
sub serves transcendental, spiritual purposes, as that a man should no room in so many words for consultation of C'Ustom to supplement
not marry a girl whose patrilineal ancestors' family name agrees with and effectuate the bare rules of the book law. And English law
his own. The first class of rule can be neglected if adequate reason naturally filled the gaps thus revealed. The personal law authorised a
appears (which the smriti-writer himself would be likely to recog- widow to adopt a son to her deceased husband if empowered by him;
nise); but the second can never be neglected without spiritual danger but the question whether she had been empowered was referred to the
and unpredictable effects.ll English law of powers. Again, if a member of an undivided family
A Vedic injunction, if a plain case can be found, will overrule, or wanted to mortgage his interest the rights of the mortgagee had to be
vitally affect the construction of, a contrary smriti text. All writers of worked out on equitable principles: the Hindu law did not contem-
smritis are presumed to have known the Veda even more thoroughly plate such a transaction. When the manager for an infant heir, a
than we can. Moreover, all smritis must be interpreted harmoniously, trustee of a religious endowment, or the manager of a joint-family
for all authors were supposed to have known each others' works. estate alienated the property for purposes other than those which
What are we to do when one text says that an adopted son, when would bind the other interested parties, for example in speculation,
happily for his adoptive father but unhappily for himself a legitimate the conflict was solved in a typically English way: the stranger, as a
heir is born, takes one-third of the estate, while another says that he bona fide purchaser for value without notice of the defect in the
takes one-fourth? A possible answer is that an adopted son of high alienor's powers, could retain his purchase against the 'beneficiaries,'
merit takes the greater, and one of lesser merit the lesser share. provided he could prove that he made sufficient bona fide enquiry
Differences between penances and punishments are accounted for In into the existence of the justifying cause behind the transfer. Nothing
the same way. Each must be imposed, taking into account the of this is in the dharmasastra in so many words, but it could be argued
character, motives, and circumstances of the offender, and the that such rules were latent within it. French enclaves, governed by
frequency or gravity of the offence. civil-law principles, saw the development of a Franco-Hindu law
with its own interpretations of the book law. The French conception
10 Which comments or exhorts, and so supports the injunction, e.g., 'those who do of the joint family as a communaute is an adequate example: on a
not maintain them will fall from caste.' This does not necessarily lay down automatic member's death the unit dissolved, a position not aCcepted at Anglo-
excommunication for such failure to maintain, but is a declamation urging attention to
the duty of maintenance. Hindu law.
11 Ancient Hindu law excelled in classification and enumeration. The Bhavishya- The methods of interpretation and attitude to norms which we
puriina (c. tenth century) in a passage cited in legal digests of the early twelfth and
seventeenth centuries (see Kane, H.D., III, 8~1) classifies smritis into the five types. find in the Sanskrit authors and later in the Anglo-Hindu law can be
See above, p. 10. distinguished, but a curious agreement is maintained. The Sanskrit.
 94 AN INTRODUCTION TO LEGAL SYSTEMS HINDU LAW 95
treatises assume . that the science of righteousness deserved to be major or minor, to support to that extent all alienations by their
treated as the norm, whether or not it conformed to the practices of father which were not immoral or illegal in motive or background,
the people. Folk, who, it was once noted humorously, knew no more even in his lifetime and irrespective of whether he might otherwise
of the dharmasiistra than they did of the Psalms of David were have paid any ensuing 'debt' out of his ·separate acquisitions. This
solemnly subjected by the British to a jurisprudence which took for curious development is among the legacies of the British period most
granted their allegiance to principles of Hinduism. If communities warmly cherished by the Supreme Court, though it is a travesty of the
purported to manage their affairs otherwise than as the book law dharmasiistra's intentions. Evidently this is to be attributed to the
contemplated, their acts were liable to be set aside, for the people public's actual outlook on the subject.
were presumed to know the book law. In two areas of India the British In view of the overall continuity of relationship between the book
failed to take,this to a logical conclusion. In Malabar judicial recog- law and its judicial day-to-day application it is evident that we must
nition of matriliny and its legal manifestations saved the population begin to look more closely at the dharmasiistra itself. The first point
from painful anomalies, and in the Punjab custom was given a high to be noted is that no one expected life rigidly to be governed by the
place by statute. Elsewhere the British attitude agreed in essentials rules. India is, after all, a country in which the prestige-holding
with that of the smriti-writers. Few Englishmen had read Coke on classes, especially the Brahmins, have been teachers or potential
Littleton or Blackstone, but the English law of real property was not teachers and the remainder pupils or potential pupils. Surveys con-
weakened thereby. There were professional lawyers in England to firm that Indian youths are docile, altruistic, keen to receive moral
advise the public, whose counterparts did not emerge ·in India until instruction. A ready response greets the suggestion that our lives
the second half of the nineteenth century, but the difference was not should demonstrate the upward curve towards universal moral ·and
alIowed to have any effect on the development of Indian law. The spiritual attainment. A blatantly didactic approach to life and culture
smritis were believed to embody the customs of the people, and the is accepted, indeed expected in India. The dharmasiistra contains the
commentators were believed to have brought the smriti-Iaw up to quintessence of 'teaching' ; and discussions of partnership, master and
date. The fact that no more recent inn.ovative indigenous textbooks servant, husband and wife, and the many other chapters of the sub-
had appeared was taken, somewhat hastily, as evidence that customs stantive law would not be thought complete without moral exhorta-
had become static. tions and indications of the evil results of failing to fulfil injunctions
Yet, throughout, the shape of the law reflected what most influen- and of performing what is prohibited, in whatever chapter of the law
tial people wanted. A fewsmritis fell out of use because it was felt, by the prohibition occurs, spiritual or secular as well as moral. This has
the ninth or tenth century, that this 'age' did not require them. An misled observers into supposing that Hindu law was fundamentally
example would be the rule that a dead man who left no son could otherworldly and unpractical. Rather it is because scholars wanted to
expect his widow to be ordered to cohabit with a close agnate so as to teach what people wanted to learn that the tone and content of the
provide his line with.a male heir. This arrangement, of great antiquity, dharmasiistra ate as they are.
was declared obsolete, though the jurists did not on that account Now the ritual parts of that learning are in disfavour. The pre-
totally ignore it in their treatment of the classical system. In the suppositions that meritorious actions, such as gifts in charity, self-
British period surreptitious additions and modifications were made imposed penance, and pilgrimages, are essential for the well-being of
in the course of interpretation, all of which apparently coincided with society and"the individual's happiness in other lives are no longer
the public's actual usage. Self-acquired immoveable property was universally accepted. However, the notion that the human being has
held freely alienable by a father, whose sons could have vetoed his act the choice whether to seek, after death, heaven and better stages of
in pre-British times. A widow or indeed almost any female heir was life by transmigration, or to seek a cessation from the obligation to
disallowed from taking any inheritance as her absolute property: for, be reborn, is still alive, and indeed lies behind much of the apparently
though leading medieval texts would have allowed this, influential negative reformist legislation in recent years. Some of the latter hits
,sentiment insensibly guided the courts in a more reactionary direc- at caste exclusiveness and temple customs which religion had sanc-
tion. Formerly sons must pay their father's debts without limit on tioned. The system always catered for those who doubted the value of
their means, but only when he was dead and they were majors. The observances and the social obligations connected with them, but the
British developed the rule, which is called the pious obligation, by emphasis has ~hifted away from the latter only in recent centuries.
confining it to joint-family property, and by forcing all sons, whether Meritorious actions are now less regarded than personal merit, as
96 AN INTRODUCTION TO LEGAL SYSTEMS HINDU LAW 97
evidence of devotion to the higher, but not less Hindu, goal of cessa- morally less commendable course, the arthaslistra helps him to suc-
tion from worldly attachment in all time to come as well as in this ceed. The four aims of man were, after all, dharma, artha, klima
present life. (sensual pleasure), and moksha (final release from birth and living);
But seeking after perfection, 'attainment,' after death is non- and all four were required to make the whole man. A good and pru-
sensical if the daily routine is ignored. Well before the Christian era dent king, giving each its proper balanced share, would choose the
civilised life in India was considered to be the conscious maintenance path of dharma if he came to a conflict between precepts of righteous- .
of a self-disciplined, harmonious society, in which the castes per- ness and expediency.
formed their customary functions. Each household should keep its Maintenance of religion and learning would always be an instru-
place, and each member within it should observe the roles assigned to ment of royal policy. Brahmins of adequate knowledge and purity
him or her froJD. birth. Between communities the king was the final must be able to perform the requisite rituals. Otherwise agriculture,
arbiter, and he might be deposed if he failed. It was the king's and therefore taxation, w~)Uld fail. The law of marriage and in-
responsibility to see to it that each person did his duty according to heritance must support purity of the home in all senses. A good law
his stage of life and caste. If adherence to one's duty meant poverty of social discipline, an appropriate law of contracts and trusts, and an
the king should relieve it. Taxation, the king's wages, in theory effectual criminal law were all directly required by such policies.
amounted to one-sixth of the family's wealth; and he took one- This is exactly what inspired the jurists to their comprehensive task.
sixth of the merit of ascetics and others who did not earn. The king The family's earning must be proper, and their enjoyment secure.
must protect all dharmas, 'righteousnesses.' All castes must be Against this background all the public could have the common
enabled to perform their hereditary functions, which were believed virtues, which, though variously listed in our sources, always contain
to reflect long-inherited aptitudes and qualities of a moral and not avoidance of what defiles, abstention from theft and adultery,
merely a racial implication. 'Putting down the wicked,' the royal abstention from unauthorised violence towards all creatures, obe-
duty, was a means to that end. Dharma must be guaranteed by dience to elders, sweetness of speech, respect for teachers and all
society: each individual could seek his personal goal provided his Brahmins, reverence for the Veda and the culture it represented, and
search did not impede others. Harmony in fact pressed hard upon a total abstention from oppression, i.e., taking advantage of power or
the individual, but spiritual rewards were thought to be worth the prestige. To assert one's rights was out of place in a society where
sacrifices which family, caste, and kingdom required of him. internal discipline was strong and the king was expected to remedy
Everyone depends on water. Even the Himalayan snows depend on all classes of complaint.
the climate, which is pitiless and unpredictable. It was supposed This brings us again to the question of custom. Custom was, as we
anciently that righteousness was natural, and the failure of the have seen, at the root of the smritis themselves. But there could be
monsoon would reflect a failure of righteousness .. The jurists, who customs repugnant to the smriti law, and their status was uncertain.
shared such supersititions, founded their exhortations upon them. Some customs were aberrant in that they could not be reconciled with
Some laws, such as that which required a girl to be given in marriage dharmaslistra presuppositions. That a daughter should be given in
within three months of puberty, were evidently of a piece with laws of adoption for all purposes, or that illegitimate sons should share
nature, and it was felt that at bottom many another rule was natural equally with the legitimate; would be repugnant to the dharmaslistra,
too, or that there was a 'true' tendency which should be observed in but the king was authorised to enforce them if they were indeed
case of choice. Thus when various policies conflicted, that which customs of the community in question. A custoin of marrying one's
would secure the public's confidence in its own adherence to dharma sister or cohabiting with one's daughter-in-law, however, and even
must have a high priority. the apparently harmless custom of not returning possession of a
The king's classical education included a purely secular science field in respect of which one had a possessory mortgage when the in-
called artha-sastra, the science of ways and means (artha means terest received has equalled the principal, were condemned vigorous-
secular objectives, wealth). The main textbook, attributed to a histo- ly and the king was urgectto enquire into them and declare them
rical minister of the third century B.C., Kautalya, aims to tell rulers, void. Customs might be eroded by a caste's gradual reaction to the
in every pedantic detail, all they need to know to keep and to extend dharmaslistra's teaching, whereupon the king's abolition of such a
their kingdoms. The dharmaslistra tells what he ought to do to main- custom, e.g., demanding dowries at the time of marriage, would be
tain the spiritual health of the kingdom. Should he decide on the consonant both with the spirit and the literal requirements of the
 98 AN INTRODUCTION TO LEGAL SYSTEMS HINDU LAW 99
dharmasastra. But what his jurisdiction was beyond such cases it is privileges unless their penances have been adequate. Unless he
very difficult to make out. The mimamsa had the hardihood to declare observes these rules he personally incurs the guilt of unpunished and
all customs repugnant to the Veda and smriti to be void, but it is unpurged offenders. The spirit of the system is well demonstrated by
certain that kings were not advised to put this into effect as a rule. an inscription found at Uttaramerur in SOl~th India. There the rules
If we place ourselves in imagination in a royal court (that is to say for election to village committees provide that those who have lost
not in a cominercial or other specialist tribunal which would follow caste by associating with sinners may not take part in elections until
other lines) we find the Brahmin assessor citing texts. But the actual their expiation has been performed (it might take a long time);
texts, as some of their number emphasise, were not to be relied upon moreover, those who ate forbidden food are perpetually disqualified,
literally if enforcement would lead to inequitable decrees. Law with- even if they chose a perfectly legal but nevertheless light penance;
out equity would be a denial of justice. Granted that the dharma- so also even those who performed their penance for incest are per-
sastra as construed to meet the case was free from absurdity, and that petually excluded from voting, let alone from membership of the
no valid custom was shown in derogation from it, a further conflict relevant committee. Those who had been publicly humiliated as part
might emerge. Valid royal decrees of an administrative character of their penance, and those who had forged documents could vote,
stood upon a footing of equality with the book law. Indeed, they but not stand for election.
might overrule both custom and book law. But they must not purport Public opinion, the receptacle of transcendental and mundane
to touch unseen matters, nor interfere with the religious life of the ambitions, was the final arbiter: in this sense dharma was king even
people in its secular manifestations. The jurists tend to make much of over kings. Public opinion has its own ways, alongside those of law.
this. A royal order that householders should present themselves at an The dharmasastra believed in marriage as the gift of a virgin. Only in
assembly at an hour when each should be performing his worship at this way could the husband fulfil his obligations to perform, as a
home would be invalid. One bold jurist goes so far as to say that complete person, his dharma, and obtain offspring which would pay
grants subject to divesting for failure to perform services are void as his debts and continue the line. Widow-remarriage was thus a con-
to the condition, and that such grants must be construed as absolute venience about which the dharmaSastra affected to know nothing. In
grants. His reason is'that the king cannot create, by way of gift to many castes widow-remarriage was practised, and the law did not
Brahmins, a right itself repugnant to property-which involves the brand the offspring as illegitimate, they were de facto members of the
power of disposal at pleasure. But the correctness of the argument is family, and as such taken care of by custom. In recent centuries
open to doubt. IS Village and guild by-laws, however, provided they lower castes have been imitating Brahmin ethics, and have been
were not repugnant to royal policies, and provided they did not eschewing the remarriage of widows. Meanwhile the state, in 1850,
purport to meddle in unseen matters, had an equal, status with the allowed widow-remarriage to castes which the dharmasastra had
book law, and might conceivably overrule it on occasion. A king previously excluded from this facility. The same cast.!s are by no
could certainly impose an estate duty, and a marriage tax, without means obliged by law to marry virgin brides (naturally); but they are
thereby interfering either with the law of inheritance or that of taking up the custom of marrying off their daughters -at puberty,
matrimony. But there were no Indian counterparts to Henry VIII: no though the statutes against child marriages nominally penalise those
ruler purported to be master of the religious institutions and of the that engage in them-the reason being that prestige-bearing circles
doctrine. . have claimed-these recruits by imitation, statutes or no statutes. The
Indeed, the king's weight must be placed behind the moral and missionary career of the dharmasastra goes on, and the statutes
social order. Indian Utopias were envisaged as populated by people alluded to are very merCifully applied in practice. The traditional law
who did not need the king's danda ('mace' or 'sceptre') to be applied claims converts from the lower end of the social scale while it seems
for their correction. But in reality deterrents·were much relied upon. to lose adherents at the other.
The king's jurisdiction to punish offenders was seen as a duty to But this loss may be superficial. The self-contained and delicately
purge them for their benefit. He must encourage them also to perform balanced society came, as we have seen, under foreign rule, and for its
their penance, and should not allow them to be readmitted to caste former leaders were substituted others whose prestige did not stem
from a regard for the ancient culture. The opinions of London began
11 Later jurists do not follow him, and kings had been granting resumable endow- to rule in Bombay and Madras. The.natural intellectual aristocracy
ments, which tended to secure the grantee's performance of his functions in scholar- could no longer teach what the majority wanted. The energy that
ship, education, etc.
100 AN INTRODUCTION TO LEGAL SYSTEMS HINDU LAW 101
used to be spent on learning the Hindu scriptures was diverted to opinion, even superseding her herself. These antique rules have also
Shakespeare, J. S. Mill, and the textbooks of Anglo-American been abolished by the legislation of 1956.
jurisprudence. Even the joint family began to feel the draught. The Hindu legal system has thus the parti-coloured character of a
Members wanted to keep their earnings without sharing them, and, system in a transitional stage of adjustment to modernity. The
if they should die joint owners with their relations without having dharmaslistra lives on in penance (which holds its own on a voluntary
separated (out of respect for their elders), they wanted their shares to basis in those areas where excommunication is forbidden) and in
be capable of being bequeathed to legatees , of their own choice. ritual contexts: as when a house is to be dedicated or a sick man
Young people wanted to marry on their own initiative and not at wants the evils of unexpiated sins purified by ceremonies for which
their parents' pleasure, which had often been corruptly, if not always he pays. This is, of course, not law. In religious endowments the basic
,unsuitably, indulged. Polygamous unions, which used to cure a principles known to the dharmaslistra are safeguarded: an untouch-
husband's regrets, began to affront romantically minded and morally able nowadays can enter a temple belonging to ritually pure castes,
awakened Hindus. Women ceased to be a 'means of achieving but he cannot come nearer to the image than may any non-ministrant
dharma and progeny,' and became persons in their own right. of the deity, and the age-old ritual must be observed as long as the
Rigidity of caste, which in its positive aspects had promoted social sect itself endures. This position is legally protected. Marriages fol-
discipline (so long as it was not abused by caste heads who gave way low the ancient precepts; people seldom marry out of their castes or,
to faction), prevented leaders of society from even dining together, worst of all, with the bride belonging to the formerly superior caste;
and this began to be seen as a bar to political unity. A system of similarly, the genealogists adhere to the dharmaslistra when they re-
personal law which recognised caste distinctions began to seem more cord marriages and births, and the family priests follow it when
of a nuisance than an inspiration to concentration, humility, and arranging the sacraments of initiation, marriage, etc. But the law
achievement. The religious emphasis was thus consciously detached allows the individual to contract a valid marriage in a 'reformed'
from the aspect of works and their alleged occult value in after lives. manner, even with a non-Hindu if the intended spouses go before
The path of faith, which had always refreshed the underprivileged to a registrar under the Special Marriage Act, and if priests and
whom the works of the 'twice-born' had been forbidden, came into its genealogists ignore the union for all purposes only orthodox old
own. Self-government brought with it a determination to apply ladies will now 'be seen to care much.
democratic principles. This is an ideal compromise. The law does not fly in the face of
Unrepealed parts of the Hindu law which had been sedulously faith. Parties who wish to follow their cultural traditions may do sO.
retained out of regard for religious scruples were now reviewed. In Personal holiness is not. frustrated. It is up to the individual whether
the law of adoption religion had been the shield behind which widows he avails himself of the new juridical regime.
had been allowed to embarrass, indeed harass, their husband's The joint family as an economic unit is still, no doubt rightly,
relatives-by adopting, with retrospective effect to the time of their largely governed by the Anglo-Hindu law. The rights of fictitious
husband's death (perhaps seventy years before). The adopted son, as members, such as adopted sons, concubines and illegitimate sons,
the dead husband's heir would protect his adoptive mother. The survive as they existed centuries ago, only marginally affected by the
Privy Council allowed religion and logic more scope than even the reforms; but this seems a transitional feature, for cosmopolitan
litigating pl~blic accepted, and this error had to go. The widow, in her concepts of the family are gaining ground as the law seems to
own right, is now secure, as we have seen, and the occasion for harass- expect. The statutes which affect devolution of ,property on death
ment having gone, the anomaly was readily abolished in 1956. But do not make exceptions for those relations whom the high moral tone
the religious ceremonies for the deceased husband and his ancestors of the day does not favour; but the adopted son is placed on a par
may still be performed if the widow chooses to adopt both under the with the natural-born legitimate son.
dharmaslistra and under the statute, and if the family are religious The modern Hindu law of guardianship does not differ vitally from
they will give this adopted son the share that he would have had under the previous law, except in that less discretion is allowed to strangers
the old law-though whether they are obliged to do so is doubtful. to act in minors' interests""':""it is assumed that a court may be con-
The British saw no reason why the father of an only son should sulted in any emergency. As we have already seen, the old principles
not give him in adoption, if he wanted to, without the boy's mother's may be adhered to in marriage and adoption, but greater freedom is
consent; he could also appoint guardians without asking her allowed to those who need it, and humanitarian principles are given
 102 AN INTRODUCTION -TO LEGAL SYSTEMS HINDU LAW 103
greater weight. Individuals' needs are now placed above the stern from its commencement took religion and superstitious sanctions as
call to discipline. The law of maintenance renews the recognition of a the allies of jurisprudence, while recognising that no actual judgment
wide sphere of dependants surrounding the hypothetical bread- could ignore puhijc opinion or public policy. Hindus at large
winner, but it attempts to organise the order of priority under which believed in dharma, with its political, social, charitable, and ritual
various funds and sources are to be approached. The basic Hindu elements. An individual's doubts or eccentricity of belief, even
value of compassion and living for others dominates the picture still. amounting to nihilism, would not affect the common spiritual
Modern remedies are indeed available. A wife deserted by her complexion of the community which guaranteed that kind of free-
husband can, after a decent interval, obtain a divorce virtually on dom. Principles based upon religion never seemed to deny the force
that ground; a woman treated cruelly by her husband's parents can of purely secular needs, and thus their prestige was assured. A con-
similarly be freed (if she wishes) from them and from him, though she flict between religion and the state never arose, and the consequence
will have a poor chance of being married again if her society is strict. remains that every organ of government believes itself under a
The law is relaxed in favour of compassion, for previously she had no permanent obligation to enforce, by adjustments, every individual's
resort but to run away, without a future. The ancient Hindu belief duty to show compassion, responsibility, and loyalty as these have
that marriage is a union for life for all purposes, spiritual and secular, been defined in the course of centuries. The codification of Hindu law
is untouched. Those who believe in it may regulate their lives ac- in India furthers this concept, and to that extent is not a radical
cordingly. The doctrine that marriage is a sacrament has stood the departure from the Hindu law still in force in other parts of the world.
test of millennia, but is no longer an excuse for the husband to treat If further modifications lead to a more decisive step it is reasonable
his wife with inhumanity. The litigiousness of the people is, how- that India should be followed ia other jurisdictions, rather than that
ever, a cross to be borne and must be remembered when we tend to be expatriate Hindus should be swallowed up in an amorphous, un-
satisfied at India's joining the Apglo-American juridical family. She differentiated state legal system.
will educate herself slowly into a more realistic and responsible atti-
tude towards her own legal system. Here as elsewhere the edticatioftal BIBLIOGRAPHY
ideals of the dharmasastra retain some scope.
Mismanagement of temples and peculation in monasteries never A comprehensive survey of the sources of the traditional Hindu law, with
comments on the Indian legislation which has amended it is to be found in
hindered the faithful. from pursuing their belief in piety and self- the encyclopedic work: \'-.
sacrifice, and the modern law of India, with its stricter control of
P. V. Kane, History of Dharmasdstra, 5 vols. in 7 Darts (Poona, Bhandar-
public endowments, does nothing to hinder it now. The emerging kar Institute, 193~2).
framework suits ancient notions, which it appears at times to affront
but in fact supports and furthers. In private law a man may in his last A shorter work for those who read I;'rench summarises the story up to
illness wish that his property should be spent in part for religious the British period, relying upon Kane (among others), but having a move-
ment and conciseness which Kane lacks:
work conductive to his soul's benefit. The new law of succession does
not give the estate to the heir whom the dharmaJiistra would have R. Lingat, Les Sources du Droit dans Ie Systeme Traditionnel de l'Inde
(parisrrhe Hague, Mouton, 1967).
chosen,. as best fitted to make the offerings to the dead. But the
decedent may himself provide by will that such an heir shall take a Several of the important ancient Hindu legal texts are translated in the
proportion, or, subject to the rights of dependants, even the whole; Sacred Books of the East series originally published by the Clarendon
or the actual heirs may carry out their religious obligations and Press (Oxford) and recently reprinted in Benares:
employ a priest to perform the ceremonies. In the field of dowry The Laws of Manu (vol. 25); Apastamba and Gautama (vol. 2); Vasishtha
legislation the spirit of the dharmasastra has at length triumphed, in and Baudhdyana (vol. 14); Ndrada and Brihaspati (vol. 33); Vishnu
(vol. 7).
that considerations for agreeing to a marriage are prohibited and
penalised; but this will not prevent relations from endowing their The medieval writers, whose works are more important from the point
daughter in a style in keeping with the ancient injunctions to 'purify' of view of the application of law, are collected (so far as they had been
the lineage by alliance with a sought-after bridegroom. translated by the date of publication)ip:
We have devoted space to considering the effects of reforms upon S. S. Setlur, A Complete Collection of Hindu Law Books on Inheritance
religious belief and practice. This is relevant because the Hindu law (Madras, 1911); while a somewhat more complete collection may
104 AN INTRODUCTION TO LEGAL SYSTEMS
be seen in the rarer and more cumbersome work of J. C. Ghose,
Principles of Hindu Law, 3rd ed., 3 vols. (Calcutta, 1917).
A useful short survey of the system relying on the smritis alone is:
N. C. Sen-Gupta, Evolution of Ancient India Law, 2nd ed. (Calcutta!
London, 1962). CHI N ESE LAW
The following works, though out of date in many respects, are still of great H. McAleavy
value:
P. Sen, The General Principles of Hindu Jurisprudence (Calcutta, 1918). T HOMAS D E QUINC EY confided to his journal in May 1818:
K. L. Sarkar, The Mimansa Rules of Interpretation as applied to Hindu
Law (Calcutta, 1909). 'I have often thought that if I were compelled to forgo
J. Jolly, Hindu Law and Custom (Calcutta, 1928). England and to live in China, I should go mad. The mere
J. D. M. Derrett, 'The concept of Law according to Medhatithi, a pre- antiquity of Asiatic things, of their institutions, etc., is so
Islamic Indian jurist,' in W. Hoenerbach, ed., Der Orient in der impressive that the vast age of the race and name overpowers
Forschung (Festschrift O. Spies) (Wiesbaden, 1967), pp. 18-41, is a the sense of youth in the individual. A young Chinese seems to
study showing objectively how the dharmasiistra operated as the me an antediluvian man renewed. In China, I am terrified by the
chief component (but not always the source of the rule) in ,the Hindu modes of life, by the manners, and the barriers of utter abhor-
law in practice. rence and want of sympathy, placed between us by feelings
Among the practitioners' books on the current system of law the following deeper than I can analyze. I would sooner live with lunatics, or
is the most suitable for a newcomer:' brute animals.' 1 .

N. R. Raghavachariar, Hindu 'Law, Principles and Precedents, 5th ed. This notion 'of the ineffable antiquity of Chinese civilisation is so
(Madras, Madras Law Journal Office, 1965). deeply rooted in western minds, exciting even today in many people
A more condensed introduction for the law student is: the same aversion as it did in De Quincey a century and a half ago,
J. D. M. Derrett, Introduction to Mo.dern Hindu Law (Oxford University that it is worth pointing out at the beginning of this essay that com-
Press, Bombay, 1963). pared with the ancient cultures of Egypt and Mesopotamia, China is
a newcomer in the world. Her past cannot be traced archaeologically
A series of studies on aspects of religion and law in India from early times with any confidence beyond the second millennium before Christ,
to the present day, including the impact of European administration, is: while her historical records proper do not begin until the eighth
J. D. M. Derrett, Religion, Law and the State in India (London, Faber and century B.C. On the other hand, though she cannot claim any special
Faber, 1968). seniority in age, we must concede her a remarkable degree of cultural
For the critical balance in India between the ideals of the secular State and self-sufficiency. The social institutions which, as described to Europe
traditional values see: by tIle Jesuit missionaries, compelled the admiration of Voltaire and
D. E. Smith, India as a Secular State (princeton University Press, 1963) other leaders of the Enlightenment and which persisted over much
and by the same editor, South Asian Politics and Religion (Princeton of China until the Communist victory of 1949 owed almost nothing
University Press, 1966). to foreigil influences, but derived their pedigree from beliefs and
customs already discernible among the primitive farmers along the
banks of the Yellow River four thousand years ago.
This great waterway has played in China, a role nearly as important
as that of the Nile and the Euphrates farther west. Yet there is one
striking difference. The culture that sprang up in Northern China
could not be described with accuracy as simply belonging to the
Yellow River area. There were a number of local centres, situated
1 T. de Quincey, Confessions ofan English Opium Eater, together with Selections from
the Autobiography (London, 1950), p. 333. For a needed corrective of this point of
view see Joseph ,Needham's witty 'Dialogue between Asia and Europe' in R. Iyer,
The Glass Curtain (1965), pp. 279 et seq. Ed.
lOS