Chapter XXXIII. Customs and Dharmashastra Works

Volume III pp. 856–884

Chapter XXXIII. Customs and Dharmashastra Works

It is now necessary to see how dharmaśāstra works have dealt with the authority and binding force of customs and usageṣ Sadācāra is defined by Harita as follows¹¹:— the word ‘sat’ means ‘good’ and the good are those who are free from (moral) taint; the practices of such people are called sadācāra. Vide Manu II. 18, which also defines sadācāra. Even the most ancient sūtras testify to the fact that numerous customs and usages had arisen in different countries and villageṣ The Āśv. gr. (I. 7. 1-2) says, ¹² ‘various indeed are the observances of (different) countries and villages; one should follow those in marriages; what, however, is common (to all or most) shall be declared by us’. The Āp. gr. (II. 15) declares, ‘people should understand from women what procedure is to be observed (according to custom)’ and the Āp Dh S. provides (I. 7. 20. 8 = II. 11. 29 14) that one¹³ should regulate one’s course of action (in difficult or doubtful matters) according to the conduct which is unanimously approved of in all countries by the Āryas (men of the three higher castes), who have been properly disciplined, who are aged, who have restrained their senses and who are neither covetous nor hypocritical and concludes with the aphorism (II. 11. 29. 15) ‘some teachers hold that the rest of the dharmas (not set out in this work) may be understood from women and from men of all castes’. Bauḍ Dh. S.⁴ (I. 5. 13) states (on the subject of śrāddha) ‘the us- ages of people should be followed as to other rites to be per- formed’. Several grhyasūtras (like Pārasakara II. 17, Mānava ##III] gr. I. 4. 6) refer to the practices of people that should be followed in such matters as commencing agricultural operations, holidays &c. It is needless to set out these in detail here. Manu¹⁶⁶¹ IV. 178 pronounces the general prescription for all men, ‘one should walk in the path of good men which their fathers and grandfathers trod; by so doing one will come to no harm’ For ordinary men this procedure is easy to understand and to follow This dictum sets a premium on the attitude of no change in any matter for fear that change may lead to some unexpected harm and has been throughout the ages up to the present the motto of most people in India. As ācāra or sadācāra is tangible and requires no effort to decide between conflicting views, we find eulogies of it in the earliest smṛtis and purāṇaṣ Vide Manu IV. 155-158, Vaṣ VI. 6-8 (the first and last of which are the same as Manu IV. 157-158), Anuśāsanaparva 104. 6-9, Viṣṇu Dh. S 71. 90-92 (which are almost the same as Manu IV. 155, 156, 158), Mārkaṇḍeya chap 34, Brahmapurāṇa 121. 6-9, Viṣṇu purāṇa III. chapters 11-12, Kūrmapurāṇa (uttarārdha, chap 15).

The general rule about the binding character of customs is set out as follows Gaut (XI. 20) observes,¹⁶⁶² 'the dharmas (customs) of countries, castes and families, which are not opposed to the Vedic scriptures, are authoritative and binding’ Gaut provides in the next two sūtras that cultivators, traders, herdsmen, money-lenders and artisans can lay down conven- tions or usages that would be binding on the respective classes, that when a dispute arises as to these usages the king should learn affairs from those who wield authority over those classes and decide the dispute accordingly Vas I. 17 states, ‘Manu has declared that the (peculiar) customs of countries, castes and families may be followed in the absence of rules propounded by the Veda’, and in XIX. 7 prescribes that the king should enforce these among the four varnas Āp. Dh. S. II. 6. 15.1 appears to lay down that the customs of countries and families (if not opposed to Veda) are authoritative and are to be followed in the respective countries or familieṣ But this view seems to be unacceptable to Baudh Dh. S (I. 1. 19-26) which says, ⁷ 'there is difference of opinion regarding five (practices) in the South as well as in the North We shall explain those peculiar to the south. They are: to eat in the company of (in the same plate with) one whose upanayana is not performed, to eat in the company of one's wife, to partake of stale food, to marry the daughter of a maternal uncle or of a paternal aunt. Now (the customs peculiar) to the north are: to sell wool, to drink rum, to deal in the sale of animals with an upper and a lower row of teeth, to follow the profession of arms and to travel by sea He who follows (these practices) in any other country than where they are generally in vogue commits siṇ For, in respect of these customs the authoritativeness must be restricted to the respective countrieṣ Gautama declares that this is false. And one should not approve of (accept) either (of the two sets of practices), because they are opposed to the tradition of śiṣṭas (or opposed to the smṛtis and the views of śiṣṭas)'. The Tantravārtika ⁸ (p 211) mentions the argument of some concerning these passages of Āp and Baud viz. that Āpastamba's very general statement that practices of countries and families are authoritative in the respective countries cannot be accepted as valid, as it is opposed to the views of Gaut. (XI. 20), as Bauḍ expressly states that certain practices, though prevalent in certain localities cannot be accepted as valid and binding even in those localities because they are opposed to the express words of such authoritative and highly venerated smṛtis (as those of Manu) Manu in several places provides for the enfor- ceability of customs and usageṣ In Manu VII. 203 it is said, ‘the conqueror should hold as authoritative and binding the lawful customs of the conquered country, just as they are stated to be’ and in Manu VIII. 41 and 46⁹ it is provided, ‘A king who knows dharma (sacred law) should carefully inquire into the customs of castes, of countries, of guilds and of families and settle (or enforce) the customs peculiar to each. Whatever may have been practised by the good and by twice-born men devoted to dharma, that shall be established (by the king) as the law, provided it be not opposed to the (customs of) coun- tries, families and castes’. Medhātithi adds that the king has to see whether the customs of countries, families, castes and guilds are directly in conflict with the Veda or are harmful to others or utterly immoral (such as marrying one’s mother) and only those that are found not to be so are to be enforced by the king and he¹⁰ adds on Manu II 6 that the practices of śiṣṭas (persons who are well conducted, free from greed and learned in the Veda) on matters on which the Veda and smṛti are silent and which they observe with the consciousness that they (prac- tices) are right (dharma) should be deemed to be based on Veda. He offers certain illustrations of such practices and also relies¹¹ upon the words of the Mahābhārata (Vanaparva 313. 117), 'what is true dharma is concealed as in a dark cave; the (only) path is to follow great men'. In I. 118 Mann declares that the ancient (or long enduring) laws (or customs) of countries, castes, families and the rules among heretics and companies (of traders and the like) have been dealt with by him in the śāstra (Institutes). Yāj. I. 343 provides that when a conqueror reduces a country to subjection he should preserve intact whatever customs, laws and judicial procedure, and family usages are handed down from generation to generation therein (provided they are not opposed to śāstras and, as the Mit. says, he should not cause confusion by imposing the us- ages of his own country on the conquered country). Yāj. II. 192 (like Manu and Gaut.) provides that the varying usages and conventions of śreņis (guilds of artisans), naigamas (traders), heretics and associations (of soldiers and the like) should be respected by the king in the same way as he honours the usages of learned brāhmaṇaṣ About the latter Yāj. II. 186 says that the king should sedulously enforce the conventions of learned brāhmaṇas which are not opposed to the dictates of the Veda and smṛti (such as about pastures, water-courses and wells and the preservation of temples) and he should also enforce his edicts that are not opposed to Veda and smṛti (such as making pro- vision for travellers and prohibiting the sale of horses to an enemy &c.). Kauṭilya prescribes¹⁶⁶⁸ that the king should follow as regards inheritance and partition the customs that are in vogue in a country, a caste, a saṅgha (company or guild) or a village. Devala¹⁶⁶⁹ and Bṛhatparāśara (X. p. 281) have a verse very similar to Yāj I. 343. The Mahābhārata remarks that there is no custom or practice that can be said to be beneficial III ] to all alike¹⁴. From this it follows that variations in practices were to be tolerated by the king. Bṛhaspati¹⁵ advises the king to keep intact the customs of countries, castes and families that have been long in vogue in them and states that otherwise the subjects become irritated and disaffected and there is loss of wealth and army. He gives certain striking illustrations of peculiar practices: 'members of the twice-born classes in the southern countries take in marriage their maternal uncle's daughter; in the middle country (the country between the Himālaya and the Vindhya lying to the west of Prayāga and to the east of Vinasana where the Sarasvatī disappears, as said by Manu II. 21 ) artisans and menial workers eat the flesh of a cow; in the eastern countries people (all including brāhmaṇas) eat fish and women are given to adultery; in the north women drink liquor and contact with them even in their monthly illness is allowed; the people of the Khāśa country take as wives the widows of their own brothers; these several people are not liable to undergo punishment or penance because of their doing these things in the respective countries'. Medieval writers differed about the meaning of the last half verse. The Madanaratna said (acc. to V. P. p 22) that there is neither punishment nor prāyaścitta when the above practices which are opposed to smṛti texts are indulged in by the inhabitants of the countries specified, while the V. P. p. 22 holds that there is only absence of punishment at the king's hands for these people in those countries, but they are still liable to undergo prāyaścitta and that if these practices are followed in other countries both punishment and prāyaścitta have to be undergone Kat,¹⁶ defines what is meant by the customs of countries and families and states how and when they are to be enforced: 'That is said to be the custom of a country, which is in vogue in a country, is of long standing and is not opposed to the Veda and Smṛti. That is called family custom which has come down hereditarily in a family as right conduct (dharma) to be observed (by members of that family); the king should preserve it as it iṣ' In disputes between the residents of the same country or capital, hamlet of cowherds, town or village the decision should be based on their own conventional usages, but in disputes between inhabitants of these and others the decision must be in accordance with the sacred textṣ Therefore the king should decide the causes of people according to the rules of śāstra: but in the absence of texts he should carry out (the administration of justice) according to the usage of the country. Whatever conventions are settled in accordance with the consent of (the people of a) country should always be preserved in writing sealed with the royal seal. Such conventions should be sedulously upheld as if they were the dictats of śāstra and the king should decide (disputes) after carefully considering them'. Here Kāt is principally concerned with the decision of legal disputes on the basis of the customs of countries and families, but his rules also have a general applicatioṇ He also states that in the case of the conflict of laws by which the parties are governed śāstra prevailṣ Pitāmaha¹⁷ has a similar verse about the usages of towns, villages and guilds and mentions that Bṛ held the same view. Manu also (VIII. 3) requires the king to decide the disputes of people according to principles drawn from local customs (deśadṛṣṭa hetu) and from the Institutes of law (śāstradṛṣṭa). Medhātithi (on Manu VIII. 3) gives some interesting illustrations of local customs; viz in certain southern localities a sonless widow J cupies a square low table in the hall of justice, when she is ruck with dice by the judicial officers and then she gets her eband's property (this is a reminiscence of Nirukta III. 5 laining Rg. I. 25. 7), in the north there is a custom that en certain persons come on behalf of a bridegroom seeking : a virgin in marriage and they are fed at the house of the l's father then it is implied that there is a promise to give at girl in marriage to that particular bridegrooṃ These two customs are not opposed to any śruti or smṛti (and even the P. p. 10 refers to the second as prevalent in the north and adhyadeśa). But Medhātithi mentions other local usages at are opposed to smṛti e g grain is lent in spring and in the itumn of the same year double of it is takeṇ This is opposed the rules of smṛti laying down rates of interest.

Very difficult questions arise in regard to the relative force f śruti, smṛti and sadācāra and numerous rules have been laid own in cases of apparent and real conflicts among theṃ As anu II. 6, Vaṣ I. 4-5 and Yaj. I. 7 mention the sources of karma to be śruti, smṛti and sadācāra in that order, the Mitāk- arā remarks ¹⁸ that 'in case of conflict, each preceding one of hose three has more force (or binding character) than each ucceeding one.' Śruti or Veda is recognised by all smṛti writers s the highest or supreme authority for those who desire to know what dharma ¹⁹ is (vide Manu II. 13 and Yaj. I. 40). If two Vedic texts of equal authority are in conflict, then Gaut ²⁰ I 5, Manu II. 14 and Jābāli declare that there is an optioṇ For example, there are two Vedic texts 'he takes the ṣoḍaśin cup in he Atirātra sacrifice' and 'he does not take the ṣoḍaśin cup in he Atirātra'. In this case there is an optioṇ Similarly Vedic texts say that the daily Vedic agnihotra may be performed after sunrise, or before sunrise or when neither the sun nor stars are visible. Therefore there is an option, viz. the daily agni- hotra offering may be made at any one of the three times speci- fied (Manu II. 15). But a Vedic text which is in apparent con- flict with another is not always of equal force with that other. In such a case there is no option, and various rules are laid down in the Pūrvamīmāṁsā some important ones among which will be discussed at length in the section on Pūrvamīmāṁsā. Such texts may be explained by holding that one lays down a general rule (sāmānya), while the other lays down a special rule (viśeṣa) or an exception, or that one is a vidhi and the other merely an arthavāda or that the two texts have different scopes or refer to different ages &c. All these rules about the interpretation of Vedic texts have been held to apply to smṛti passageṣ For example, Manu VIII. 381 is a general rule absolutely prohibiting the killing of a brāhmaṇa. While Manu VIII. 350 allowing the killing of a brāhmaṇa in self-defence is even a guru who is really not to be killed on any account may be killed when he is an ātatāyin, what of others, as the Mit. on Yāj II. 21 explains). Similarly Manu VIII. 351 saying that there is no fault (i.e. no sin, no punishment and no prāyaścitta) in slaying an ātatāyin has restricted scope as applying only to an ātatāyin who is not a brāhmaṇa. A few more examples will be given immediately below.

In cases of conflict between śruti and smṛti, the rules laid down by the Pūrvamīmāṁsā have already been explained (pp. 832-34). Jaimini VI. 1. 13-14 and Śabara furnish an example. If, relying on Manu VIII. 416, the pūrvapakṣa were to argue that women own no wealth and so should not engage in a vedic sacrifice, then as that smṛti so interpreted is opposed to the Veda it may be discarded by women²¹. Smṛtis also lay down certain gene- ral rules on that point. Laugākṣi²² and Jābāla lay down that in case of contradiction between śruti and smṛti, the former has greater force and that if there is no contradiction then what is laid down in the smṛti should be observed as if it were laid down by the Veda. The Mit. on Yāj III. 46 admits that a proposition of the Veda cannot be set aside (bādhita) by even a special proposition in a smṛti text. But in spite of the general proposi- tion commentators like Viśvarūpa, Medhātithi and Vijñāneśvara III ] had to admit that what was laid down by śruti texts was set aside or contradicted or abandoned by smṛti texts or by popular sentiment. After the Udayanīyā (concluding stoma sacrifice was finished, a rite was prescribed in which a barren cow (called Anūbandhyā) was sacrificed for Mitra and Varuṇa. But later on this was condemned and in lieu of a cow āmiKṣā (mixture of heated milk and curds) was substituteḍ Vide H. D II pp 1200-1201 for the anūbandhyā cow and p. 628 n 1198 above for the verse quoted by the Mit. on Yāj. II. 117 condemning cow sacrifice in Kaliyuga. Yāj. III. 234 puts govadha (slaughter of a cow) at the head of upapātakaṣ Medhātithi on Manu IV. 176 after stating that even such acts as donating all one's property in the Viśvajit sacrifice or killing a cow should not be done (though sanctioned by the Veda) remarks that he gives that explanation following his predecessors' views but that to him it appears that an express śruti text cannot be set aside by a smṛti passage²³. Viśvarūpa also (on pp. 25-26) after adverting to the fact that Yāj III. 234 places govadha at the head of Upapātakas remarks that this may apply to the killing of cows spoken of in smṛtis such as at the time of samāvartana (vide Manu III. 3 ) and that the rule must be upheld that a smṛti that is in conflict with an express text of the Veda is to be set aside. Sometimes even a smṛti text though theoretically weaker than śruti was allowed to prevail over a śruti. For example, the Veda prescribes the filling of the cups of wine in Sautrāmaṇi iṣṭi, but this is one of the matters prohibited in Kali²⁴ (vide chapter on Kalivarjyas below).

The general rule is that when a custom or usage is opposed to the text of the Veda the latter must prevail. So early a writer as Āpastamba states this rule emphatically in several placeṣ In Āp. Dh. S. I. 1. 4. 8 it is stated²⁵: 'For, an explicit śruti text has greater force than ācāra (usage) from which a śruti text (on which it may be supposed to be based) may be inferreḍ' In I. 11. 30. 8-9 Āp Dh. S. says, 'during the morning and evening twilights a snātaka should be seated outside the village and should restrain his speech (should not speak about worldly matters ); but ( an agnihotrin must not go out for ) what is enjoined by śruti is of more force in case of conflict of duties'. Similarly in Āp. II 9. 23. 8-9, 'It is the settled view of those who are deeply learned in the three Vedas that they are (highest) authority. They consider that the rites which are there prescribed for performance with rice, yava, animals, clarified butter, milk, potsherds ( in conjunction ) with the wife and accompanied by loudly or inaudibly recited (mantras) must be performed and that a usage opposed to these rites is without authority'. In spite of this and the doctrine of the Pūrvamīmāṁsā stated above (p. 843) usages sprang up that were opposed to or gave the go-by to the prescriptions of the Veda as will appear a little below and particularly in the section on Kalivarjya

The conflict of smṛtis among themselves presents much greater difficultieṣ From very ancient times authors of smṛtis differed greatly among themselveṣ A few striking examples may be citeḍ Āp. Dh S. (I. 6. 19 2-12) cites the views of ten predecessors on the question of the persons whose food may be partaken of by a brāhmaṇa ( ka āśyannāh ). The difference between Gautama and Baudhāyana on the one hand and Āp. on the other on the question of the validity of certain usages in certain localities has already been referred to (p 858). In III 16 Manu mentions three views ( and four sages ) on the question of the position of a brāhmaṇa who marries a śūdra wife or has a son or a child from her. Bauḍ Dh. S. I. 8 2, Manu III. 13, Viṣṇu Dh. S. 24. 1-4, Pār Gr. I. 4, Vaṣ I 25 show that brāhmaṇas were allowed to have śūdra women as wives But Yāj. I 56 emphatically dissents from this by stating 'this is not my view'. In this state of affairs the medieval digests and commentators were hard put to it to evolve rules of interpretation One rule early evolved was that when two smṛti texts were in conflict, 'reasoning based on the practices of elders (śistas) was of greater force' (Yāj. II. 21)²⁷. The Mit explains that ratiocina- tion may take the form of holding that one general rule and the other lays down a special rule (which prevails over a general rule ), or the text may be held to relate to diffe- rent sets of circumstances or in the last resort it may be held that there is an option, but in arriving at these conclusions the practice of the old or of śistas who follow the rule in one text and discard or avoid the rule in the other text is the guide²⁸. Br. gives the following warning to those who do not take reasoning into consideration: ‘The decision (in a cause) should not be given by merely relying on śāstras, for in the case of a decision devoid of reasoning loss of dharma results’. Nāṛ. ( I. 40 ) provides in a strain similar to the Mīṭ, ‘when there is conflict between two texts of dharmaśāstra, it is declared that the method to adopt is to resort to reasoning, ‘ for the practices ( of śistas ) are of great force and the strict letter of the law is overruled by them (or properly understood through them)’. These provisions remind us of the working of the principle of aequitas applied by the prætors in Rome to the rigid older legislation or the influence of Equity in English Law. old rules become too narrow or are deemed to be not in harmony with the views of a changing or progressive society, it was thought to be the privilege of the king or the judge to adopt his practice to the existing state of society and not to decide a case by a too strict adherence to ancient dicta.

Another rule that was laid down was that in case of conflict between dharmaśāstra and arthaśāstra, the former is of more weight or authority or that one should discard the rule in the arthaśāstra ³⁰ (Āp. Dh. S. I 9 24. 23; Yaj. II 21; Nār. I. 39; Kat. 20 ) Vide pp. 8–9 above for an explanation of this rule. The rule of the arthaśāstra has the accomplishment of a visible or worldly purpose as the goal, while the dharmaśāstra rule has as its purpose the securing of unseen or spiritual resultṣ Therefore the latter from a spiritual or ethical point of view is superior to the former.

Several other methods of resolving conflicts between smṛtis may be mentioned here. Br.³¹ states: ‘Manusmṛti occupies a pre-eminent position because it puts together the purport of the Vedas; that smṛti which is in conflict with the purport of Manu is not commended’. Angiras also states that to follow the words ( of another smṛti) disregarding the unrivalled dharmaśāstra of Manu would not be beneficial to a persoṇ The Mit. on Yaj III. 300 speaks of the Manusmṛti and others as the great smṛtis (mahā-smṛti). Some writers³² quote the Vedic text ‘whatever Manu said’ is indeed medicine’ in this connection, thereby identifying the author of the Manusmṛti with the Manu named in the Vedaṣ But this does not afford much help. Another principle evolved was that certain rules of conduct and certain smṛtis were of special authority in certain cycles of time. Manu (I. 85-86 = Sānti 232. 27-28 = Parāśara I. 22-23 = Brhat-Parāśara I. p. 55) himself says that the dharmas differ according to which of the four yugas is current, viz. tapas is the highest dharma in the Kṛta age, knowledge in Tretā, yajña in Dvāpara and only dāna in Kali. This verse only means that in a particular yuga the predominant or easily performed dharma is the one indicated but the verse does not mean that a dharma predominant in one yuga was prohibited in another. Parāśara I. 24 ³³ (= Brhat-Parāśara I. p. 55) declares that in the Kṛta age the dharmas (to be observed) were those promulgated by Manu, in Tretā those of Gautama, in Dvāpara those of Śaṅkha-Likhita and in Kali those of Parāśara. This also did not solve all difficulties, since the medieval digests and commentaries found that even what was allowed by Parāśara came to be disapproved of or condemned by the people: Many prescriptions of the smṛtis were therefore included under varjya (acts forbidden in the Kali age) on the ground that action, though at one time prescribed or sanctioned by the śāstra, should not be resorted to, if it has become hateful to the people, since it would not lead to heaven³⁴ (if persisted in). This was the dictum of Yaj. I. 156 (= Brhan-Nāradīya-purāṇa 24. 12), Manu IV. 176, Viṣṇu Dh. S. (71. 84-85), the Viṣṇupurāṇa (III. 11. 7), Śukra III. 64, Bārhaspatya-sūtra (on Arthaśāstra) V. 16. Vide p. 630 and ṇ 1202 above. These texts were relied upon for prohibiting certain acts (though done in former times) by the Mit. (on Yaj. II. 117, III. 18), V. P. (p. 442) and otherṣ But these devices of interpretation also proved futile in certain caseṣ On the question of the periods of mourning due to death for kṣatriyas and others the texts are so various and so conflicting that even the great Vijñāneśvara declares (on Yaj. III. 22) that he is not going to furnish any orderly presentation of the smṛti texts assigning to each its proper province, since it would be useless to do so in view of the fact that the usage of śiṣṭas did not agree with most of them³⁵. Viśvarūpa also (on Yaj. III. 30) is in the same predicament. The commentators (such as Mādhava in Par. M. on I 1, p. 84) were aware that people would not go in for religious practices that called for great effort and would seek for such rules as would be easy of observance ³⁶

In some cases it was provided that where there is a conflict among smṛtis the view of the majority should prevail Gobhilasmṛti (III 148–149) provides³⁷ that where there is a conflict (of smṛtis), authoritativeness rests with that view which is supported by a majority of the texts, but where two passages are of equal authority then reasoning has to be employeḍ The assumption or axiom was, according to Medhātithi³⁸ (on Manu II. 29 and XI. 216), Mit (on III. 325), Sm C. (I. p. 5), Aparārka p. 1053, Madanapārijāta (pp. 11, 91) and others that all smṛtis form one śāstra, that if some smṛti texts on the same subject are in conflict there is an option and when there is no conflict all rules from all smṛtis should be held applicable to the subject matter; this was based on the analogy of the maxim called ‘sarva-śākhāpratyayaṇyāya’ or ‘śākhāntarādhikaraṇa’ (vide Jai. II. 4. 9 and Śabara thereon)

It is further provided that works of heretical sects were to be left out of consideratioṇ Manu calls them smṛtis, but they are outside the pale of Vedic orthodoxy. Manu (XII. 95) declared,³⁹ ‘the smṛtis that are outside the (pale of) Veda and all false or fallacious doctrines are of no avail after death, because they are all based on ignorance’. In the Vedāntasūtra (II. 1 1) also the word smṛti is applied to the works on the Sāṅkhya philosophy. The Tantravārtika ( p. 195 ) says that the Bauddhas and other heretical sects do not admit that their doctrines are based on the Veda, like a bad son hating his parents; the prescriptions contained in their works are opposed to all the 14 vidyās except in the case of a few sentences laying down restraint of senses, charity and the like; they were promulgated by persons like the Buddha who had given up the path of the Veda and did acts contrary to the Veda and they were propounded to persons that were beyond the pale of the three Vedas and that mostly were śūdras and persons outside the system of the four varṇas and āśramaṣ Medhātithi on Manu II. 6 adopts this and remarks⁴⁰ that the Śākyas, Bhojakas and Kṣapaṇakas do not admit the Veda as authoritative, they openly declare the Veda to be unauthoritative and they teach doctrines directly opposed to the Veda. The Caturvimśatimata⁴¹ states that the words of Arhat ( Jina ), of Cārvāka and of Bauddhas, should be abandoned as they lead to delusioṇ

Then comes the question of the conflict between smṛtis and purāṇaṣ It has been shown in the H. of Dh., vol. I pp. 160-167, how the Purāṇas are rich in Dharmaśāstra material. The sūtras and early smṛtis do not look upon the Purāṇas as a source of dharma, though Gaut. XI. 19 and Yāj. I. 3 mention Purāṇa as one of the classes of works on which the king or any one else may draw for knowledge of dharma and though the Āp. Dh. S. quotes from a Purāṇa in I. 6. 19. 13, I. 10 29. 8 and II. 9. 23 3 and names a Bhaviṣyatpurāṇa in II. 9. 24 6. It is to be noted that the views quoted by Āp. from the Purāṇas in the first three passages are opposed to the views of the Kaliyvarjya section alleged to be taken from the Ādityapurāṇa in medieval digestṣ The passage of the Tantravārtika stating that Purāṇas, Manusmṛti and Itihāsa are universally accepted throughout India has been already quoted ( on p. 853 ). When Manu states that smṛti is a source of dharma he does not obviously comprehend Purāṇas under smṛti as Manu II. 10 clearly shows ( dharmaśāstram tu vai smṛtiḥ ). Manu III. 232 and Yāj. III. 189 employ the plural ‘Purāṇāni’ and so those smṛtis obviously knew several Purāṇas and Medhātithi notes that they were composed by Vyāsa and described the creation of the world &c. The Strīparva (13. 2) also employs the plural and the Svargārohaṇikaparva (5. 46-47) speaks of Kṛṣṇa Dvaipāyana as the author of 18 Purāṇaṣ The Ādiparva⁴² (1. 293–94) prescribes that one should strengthen the Veda by (the study of) the Itihāsa and Purāṇa and that the Veda fears the man whose knowledge is insignificant 'this man will harm me' According to the Bhāgavata-purāṇa I 4. 25 the purpose⁴³ of the composition of the Mahābhārata was this that as the Veda cannot be learnt by women, śūdras and brāhmaṇas who are so only by birth (and do not study) the sage Vyāsa took com-passion on them and composed the Mahābhārata for their benefit. The same must be deemed to be the purpose of the com-position of the purāṇaṣ The Dakṣasmṛti II. 69 prescribes⁴⁴ the recitation of itihāsa and purāṇa in the 6th and 7th parts of the day (divided into 8 parts). The Auśanasa smṛti (III. p. 515, Jīvananda) prescribes the study of the Veda in the bright half of the months from Māgha after utsarjana and the study of the Vedāṅgas and of Purāṇa in the dark half. It appears that some at least of the extant Purāṇas were composed in the first centuries of the Christian era and that from early times they contained dharmaśāstra material. In another section the paurāṇadharma will be separately dealt with hereafter. Gradually the Purāṇas became very popular in the course of centuries, some of the original rites prescribed by the Veda and the early smṛtis went out of vogue and new modes of worship and rites provided by the Purāṇas came into general obser-vance. The Vedavyāsa smṛti⁴⁵ (I. 4) and the Saṅgraha state that in case of conflict between smṛti and purāṇa smṛti is to be III] preferreḍ Aparārka (p. 9) quotes⁴⁶ a smṛti text, 'that is highest dharma which is understood from the Veda, that is to be known as inferior dharma that is declared in the Purāṇas and the like'. Aparārka (p. 15) further tells us that⁴⁷ accor-ding to the Bhaviṣyatpurāṇa the purāṇas are of authority in declaring dharma that is vyāmiśra (i. e. mixed up and not purely Vedic). Medieval writers were often divided as to the authoritativeness of purāṇaṣ Mitramiśra (in his commen-tary⁴⁸ on Yaj. II. 21) asserts that dharmaśāstra (viz. smṛti) is not more authoritative than purāṇa and that in case of con-flict between a smṛti text and a purāṇa text recourse must be had to reasoning as in the case of conflict between two smṛtis On the other hand, the V. Mayūkha,⁴⁹ after quoting Manu IX. 126 and Devala about the first born among twins being regarded as the oldest and after referring to a half verse from the Bhāgavata-purāṇa (rather from the commentary of Śrīdhara thereon) which holds that among twins the one born later is to be deemed as the elder, remarks that the Purāṇa passage is to be set aside in favour of the smṛti passages and that in the purāṇas usages opposed to the smṛtis are very frequently met with. It further says that this view is preferable to that of some others according to whom in this matter the custom of the country should be followeḍ The Nirṇayasindhu (III p. 251) also says the same. The respect for the purāṇas carried away late medieval writers so far that relying on some prophetic passages in the purāṇas about the disappearance of four varṇas in the Kali age and the subsistence of only brāh-maṇas and śūdras therein, they denied the existence of kṣatriyas and vaiśyas in the Kali age, in spite of the fact that all smṛtis (like Manu, Yāj, Parāśara) and many commentaries (including the Mitākṣarā) hold that the four varṇas exist in the Kali age. Vide H. of Dh. vol. II pp. 380-382 about the existence of kṣatriyas in the Kali age.

The case of conflict between smṛti and customs has now to be considereḍ The general rule deduced from Vaṣ I. 5, Yāj. I. 7 and supported by the Mit. (on Yāj I. 7 and II. 117), the Sṃ C. (II. p. 266 ), Kullūka (on Manu, II 10) and several others is that smṛti is of superior authority to the usages of the śiṣṭaṣ But from early times there have been dissenting voiceṣ Viśvarūpa on Yāj. III. 250 states that that purport of-the smṛtis is to be followed which is in accordance with the settled practice of the śiṣṭas resident in Āryāvartā⁵⁰. On Manu IV. 176 Medhātithi points out that niyoga is permitted by such smṛtis⁵¹ as Gaut. 18.4–14, Yāj. I. 68–69, Vas 17. 56–65, but being condemned by the people it is not practiseḍ Therefore the principle that may be deduced from these is that the prescriptions of smṛtis (and even of śruti) need not be observed and should not be observed when they are vehemently condemned by the people. The chapter on Kalivarjya will make this clear. Commentators like Medhātithi (on Manu II. 10) went so far as to say that Dharmaśāstra is that which prescribes what is to be done for attaining dharma, that is smṛti from which dharma which one performs as a duty is understood and therefore śiṣṭācāra⁵² also is smṛti. The smṛtis themselves embodied the practices of the people current in their days, as Manu I. 107 declares, 'in this work dharma has been fully stated as well as the good and evil qualities of (human) actions and the ancient customs and usages of the four varṇaṣ'⁵³ Manu adds (I. 108), 'ācāra (customs and usages) are transcendental law, and so are the practices declared in the Veda and the smṛti; therefore a twice-born person desirous of his own welfare should always make efforts to follow it'¹⁷⁰⁹ This has been the basic text in modern decisions that recognize the binding nature of customṣ It is therefore necessary to understand the exact meaning of this verse. Two constructions are possible; (1) that the word ācāra is qualified by the words ‘śrutyukta’ and ‘smārta’ and declares that usages declared in the Veda or smṛti are transcendental law (this is the meaning given by most commentators of Manu); (2) that ācāra by itself and other rules of conduct declared in the śruti or smṛti are transcen- dental (i. e. here in the first half of the verse there is a reference to three kinds of ācāras, as Govindarāja and Nandana explain ). If we look to the preceding verse and the following verses (that eulogise ācāra) the 2nd construction looks more natural and has been accepted by the decided cases when ¹⁷¹⁰ they lay down that ‘immemorial usage is transcendental law’ (Sir William Jones’ translation of Manu I. 108) and that “under the Hindu system of law clear proof of usage will outweigh the written text of the law”. The Anuśāsana (141. 65) and Śānti 354. 6 expressly state that dharma is threefold viz. that declared in the Veda, that declared in the smṛtis and the third is what is practised by śiṣṭaṣ Sumantu ¹⁷¹¹ emphatically declares that family usage should be preferred to the prescriptions of śāstra. The Kūrmapurāṇa ¹⁷¹² (Uttarārdha 15. 19) appears to support the 2nd interpretation when it says, ‘one should observe that ācāra which is declared by the śruti and smṛti and which is rightly followed by the good’. The exact import of the word ācāra (or sadācāra) has been shifting from age to age and among commentatorṣ In the earliest days, as shown by the Tai. Up., Gaut. (28. 48, 51), Baud Dh. S. I. 1. 4-9, Manu XII. 108-109, Vaṣ I. 6, the ācāra to be followed was that observed or declared by learned brāhmaṇas who were highly moral and selfless (the śiṣṭas). Medhātithi on Manu II. 6 states that binding ācāra is that of śiṣṭas learned in the Vedaṣ Gradually every usage that had no visible secular purpose came to be looked upon as binding and lastly the usages of śūdras, of pratiloma castes and even of heterodox sects became, as will be shown in the sequel, enforceable by the king. As observed in 39 Maḍ 298, 301 the commentaries indicate an attempt to reconcile the text law with the actual usages of the people.

The requisites of valid customs, according to the smṛtis and commentaries and digests, are similar to those laid down by the writers on Pūrvamīmāṁsā i. e. they must be ancient, must not be opposed to śruti and smṛti, must be such that they are regarded by respectable people as obligatory on them and such as are observed with that consciousness by the śiṣṭas, they must be strictly construed and cannot be availed of by others not within their purview and must not be immoral or severely condemned by popular sentiment. Customs once in vogue may be abandon-ed by the people as the chapter on Kalivarjya will show.

From Gaut., Manu, Br., Kāty. and other writers quoted above it follows that the customs and usages of which account has to be taken are those of districts (deśa or janapada), towns and villages, castes, families, guilds or corporations or groups (gaṇa, śreṇī, sangha, naigama, varga). A few words on each of these and on usages of gotras and śākhās will be said later on and a few illustrations of each will be giveṇ But first of all certain preliminary observations have to be made about customs in general. The medieval writers on Dharmaśāstra make it clear that customs that depart from the generally received smṛti prescriptions must be strictly construed and that they cannot be extended on the ground of analogy to other matters outside the specific acknowledged customṣ For example, both the Sṃ C. (I. 71) and the Smṛtimuktāphala⁵⁸ (on Varṇāśrama p. 31) say that, though one's maternal uncle's daughter can be married (by custom) yet one's mother's sister or mother's sister's daughter cannot be married, because popular sentiment is opposed to the latter kind of marriages and popular sentiment is to be respected as Manu declares (in IV. 176). Similarly the saṁskāra-kaustubha⁵⁹ and the Dharmasindhu provide that where there is a local or family usage for narrowing down the limits of sapiṇḍa relationship in marriage, only those who belong to that locality or family can avail themselves of such narrowing down, but if a person in a different locality or belonging to a different family were to follow the practice of narrowing down the sapiṇḍa relationship, he would incur blame. Owing to the vastness of Bharatavarṣa it was recognised that what was sadācāra in one country would not be so in another, as is noted by the Par. M. (I. 2. p. 65) in relation to marriage with one's maternal uncle's daughter.⁶⁰

A few words may now be said about customs of countrieṣ That usages about details of ritual varied a great deal even in the Vedic times is quite clear. The Śat Br. (I. 1. 4 13) notes that in former times it was the wife of the sacrificer that rose at the Havisṛt call, but that in its own day the wife or a priest (the Āgnīdhra) rises in answer to the call. Vide H. of Dh. vol. II. p. 1027 and ṇ 2311 on the Havisṛt call. For similar differences in practices vide the same Brāhmaṇa XII. 3. 5. 1 and XII. 6 1. 41. The Ait. Br. frequently refers to one view and refutes it by saying that one should not do so ( tat tathā na kuryāt ) or one should discard it ( tat tat nādṛtyam ) e. g. vide chap. 12 7, 17. 1, 18. 8, 28 1, 29. 5. Vide also Tai. Br. I. 1. 8, I. 3. 1, III. 8 8 for similar wordṣ That different districts had different customs about marriages and other matters even before the times of the gṛhyasūtras and dharmasūtras has been noted above (pp. 856-857) Baudhāyana made a distinction about the customs of the northern and southern people (countries). That customs of the northern and southern countries differed is emphasized by many commentators and writers of digestṣ For example, the Mit. on Yāj. I 256 refers to the differing views of dākṣiṇātyas and udīcyas on Ekoddiṣṭa-śrāddha. Śankara-bhaṭṭa in the introductory verses of the Dvaitanirṇaya (or Dharma-dvaita-) expressly states that he will furnish solutions of knotty points in Dharmaśāstra after abiding by the views of southern writerṣ ⁶¹ The Nirṇayasindhu in its section on sāpiṇḍya speaks of Śūlapāṇi, Vācaspati and Śuddhīviveka as Gaudas and Maithilas, and points out that Śūlapāṇi in the Sambandha-viveka and the Sambandhatattva (a Gauda work) allow marriage with a girl separated by three gotras from the bride-groom, while the southern writers (dākṣiṇātyas) do not accept the view. But in those days there were no rigid territorial boundaries for certain practices or doctrineṣ For example, Vijñāneśvara, Madana-ratna, Pārijāta, Vācaspati and Śūlapāṇi accepted the view that sāpiṇḍya arises from community of the particles of the body, while Aparārka, Smṛticandrikā and Mādhava (though they were southern writers like Vijñāneśvara) held that sāpiṇḍya was based on the offering of piṇḍa in śrāddhaṣ The fashion of dividing Hindu works into schools and assigning them definite territorial limits started with Colebrooke and has been perpetuated by decisions of the Privy Council and of the Indian High courts Vide Collector of Madura v. Mootoo 12 Maḍ I. A. 397 at p 432 (for reference to Colebrooke), p 435 (as to how schools arose), pp. 436-437 (as to different schools). Strange results have flowed from thiṣ The Vyavahāra-mayūkha, written by Nīlakaṇṭha, whose family belonged to Paithan in Mahārāṣṭra and migrated to Benares and who himself wrote under the patronage of a Bundella chief, came to be regarded as a work of the highest authority in Gujarat and North Konkan (even superseding the Mitākṣarā), while in Mahārāṣṭra proper its authority is subordinate to that of the Mitākṣarā. The Mit (on Yāj. II. 119) avers that in the section on the partition of heritage the texts generally repeat what is already current among the people⁶² and that if Yaj. II. 118-119 were interpreted to mean that the words ' what is acquired at the cost of paternal estate by a person himself ' stand by themselves and do not qualify the other clauses, then what is acquir- ed through friendship even at the cost of the paternal estate would not be liable to partition, which would be opposed to the practice among people. The Vyavahāra-mayūkha also⁶³ says on Manu IX. 210 ( about reunion ) that the law and administra- tion of justice are generally based as is the case with grammar on people's usageṣ The Viramitrodaya also states that all writers of digests are agreed that smṛtis on vyavahāra generally re-iterate recognized popular usageṣ

Customs of countries and families have been specially recognized from very ancient times in the sphere of marriage. The Āśv. gr. ( I. 7. 1-2 ) has been already cited above ( p. 856 ). The commentators on Āśv. gr., Haradatta and Nārāyana, both mention that in certain countries sexual intercourse is commenced immediately after marriage, that this practice is oppos- ed to the rule in Āśv. gr. I. 10 that the married couple should be celibate after marriage for at least three nights ( if not for a longer period ) and that one should follow the rule laid down in the gṛhyasūtra and not the usage of the country. The Āp. gr. ( II. 15 ) remarks,⁶⁴ ' people should understand from women ( and others ) what procedure is ( to be followed according to the custom of the country ) ' and the commentator Sudarśanā- cārya notes that certain rites like the worship of planets, aṅkurāropana and the tying of praṇsara ( a string or ribbon tied round the wrist ) are usual and are performed with Vedic Mantras The Kāṭhakagṛhya ( 25. 7 ) allows the usages of countries and families to be observed in marriage and the commentators mention some usages, viz. Devapāla refers to stating the purpose of the visit, announcing the name of the maiden, worship of family deity, striking with flowers and creeperṣ The coṃ Brahmaṇabala states that in Kashmir at the time of marriage the mother-in-law or some other woman whose husband is alive ties an auspicious wreath on the heads of the bride and the bridegroom, that the mother-in-law places flowers on the feet, knees, shoulders and head of the bridegroom and on the same seven places of the bride's body flowers are placed but in the reverse order (i. e. first on the left limb and then on the right ).

Haradatta on Gaut. XI. 20 (cited above in n 1662) mentions the following usages: in the Cola country while the sun is in the zodiacal sign of Aries maidens draw with powders of various colours on the ground an orb of the sun together with attendants and offer worship in the morning and evening; on the full moon day of Margaśīrsa maidens putting on ornaments walk about in the village and offer to a temple idol whatever they get in their wanderings; when the sun is in the sign of the Crab, maidens worship the goddess Umā while the moon is in the constellation of the Pūrva Phalgunis and offer to the gods mudga beans that have put forth sprouts and salt; when the sun is in the sign of Pisces, house-holders worship the Goddess of wealth while the moon is in the constellation of Uttarā Phalgunī. Ap. Dh. S. II. 6. 13. 7 notes that in certain countries the special portions of the eldest son in paternal wealth are gold, dark-coloured cattle and black-coloured produce of the soil (i. e. black grain). Vide Br. and Tantravārtika quoted above ( as to customs of certain countries).

Several such illustrations may be furnished from other writers, but considerations of space make it necessary to omit reference to theṃ

The Pār. gr. S. I. 8 states⁶⁵ that the usages of villages may be followed, since a text says 'one should enter a village (i. e. follow the opinion of village elders) in case of marriage and funeral rites' and since the Veda says that 'the village Is the authority in these two.' III }

Numerous caste customs have been recognized from ancient times to these dayṣ Gaut. XI. 20, Vas I. 17, Manu I. 118, VIII. 41 and 46, Kaut. III. 7, Śukra IV. 5. 47 emphasize the validity of caste customs and call upon the king to enforce theṃ Yaj. I. 361 advises the king to punish those who swerve from the usages of their family, caste, guild, or group. Kātyā- yana (40) enjoins⁶⁶ that the king should not disregard the fixed usages even of pratiloma castes and of the inhabitants of inaccessible places (mountain forts or habitations), even if they be opposed (to the rules of smṛtis). In the Paribhāṣā- prakāśa Mitramiśra holds⁶⁷ that the usages of good śūdras free from moral defects are binding on their sons and others even though they do not know the Veda.

Compared to Western Christian countries very great religious tolerance prevailed in ancient India. Vide H. of Dh. vol. II. pp 388 (ṇ 928 a), 723-724 for some remarks on thiṣ Aśoka in his Pillar Edict VII (E I. vol. II. p. 272) says that he looked after sanghas, brāhmaṇas, Ājīvakas and all other sects (pāsaṇḍa). The Bhagavadgītā (IX. 23-25) proclaims that the devotees that worship other gods do worship Kṛṣṇa himself though in an irregular way and that those who offer worship to the Manes or to the elements reach the goals they desire. The Manasollāsa enjoins⁶⁸ that one should give up condemnation of or hatred towards other gods, that one should show reverence on seeing an image or a temple and should not pass it over (in contempt). People of different countries no doubt twitted each other on the customs and usages peculiar to each; but it rarely went beyond the bandying of wordṣ For example, even such a philosophical work as the Jivanmukti viveka remarks⁶⁹ that brāhmaṇas of the south condemn even the learned brāhmaṇas of the north as flesheaters and brāhmaṇas of the southern brāhmaṇas because they marry their maternal uncle's daughters and because they carry earthen vessels in fairs or on pilgrimageṣ It was on account of the general attitude of religious tolerance that the smṛtis and digests prescribe even the usages of heretical sects should be enforced by the king. Yaj. II, 192 prescribes⁷⁰ that the king should guard against breach of the distinctive usages and conventions of guilds ( of artisans ), of traders, of heretical sects and bands ( of soldiers ). Nārada ( samayasyānapākarma 1–3 ) states⁷¹ that the king should uphold the conventions of heretical sects, of traders, guilds and other groups and that whatever traditional usages, activities, mode of attendance and means of maintenance were peculiar to them should be permitted to them by the king without introducing any change. Among the matters of which the king was to take cognizance suo motu and included under prakīrṇaka by Nārada (verse 2) was the transgression of the usages of heretics, traders, guilds and gaṇas. Bṛhaspati provides⁷² that in disputes among husbandmen, artisans, wrestlers, money-lenders, guilds, dancers, heretics, thieves, a decision is to be given in accordance with their conventionṣ It is no doubt true that certain smṛtis present a sterner treatment of heretics and the like Gaut. IX. 17 provides⁷³ that a snātaka should not talk with mlecchas, impure persons and sinnerṣ Manu IX. 225 prescribes that the king should banish from his capital gamblers, dancers, heretics, vintners &c. Manu IV. 30 holds that one should not honour as guests even by words persons who are heretics, rogues &c. and recommends that one should not reside in a country which is overrun by groups of hereticṣ Yaj. II. 70 and Nar. (rnādāna 180 ) say that a heretic (pākhandi) or an atheist is not a proper witness These passages may be explained in various wayṣ Probably the prescriptions of Gautama and Manu refer to an age when the schism caused by Buddhists and Jainas was not very old and feelings between the followers of the Veda and the heretics ran high. But most of these prescriptions are addressed to the followers of the Veda as individualṣ They do not negative the requirements laid down by Nār., Br. and others that the king (though of a different persuasion ) was to enforce among heretics their own usageṣ It can be said without any fear of contradiction that at least from the 4th century A. D. onwards the policy of the State in India was ‘to protect all religions, but to interfere with none ’⁷⁴

Customs of families will be briefly referred to later on in connection with modern law cases Among family customs the customs about the year when caula was performed and the locks of hair kept on the head in the caula ceremony are frequently mentioned in the grhya sūtras and other works Vide H of Dh. vol. II pp. 260 and 265

The digests contain numerous examples about the customs and usages that were adhered to among the followers of the several Vedic branches (śākhās) and the grhya sūtras in perform- ing several religious rites A few examples may be set out here by way of illustratioṇ According to Yaj. I. 242 the offering of pindas to the pitrs in a śrāddha takes place after the brāhmaṇas invited at the śrāddha are fed, while Manu III. 261 shows that they were offered also before the brāhmaṇas were feḍ The Sm C (on śrāddha p. 471) says that one should follow the practice of one’s own Vedic śākhā Among the five daily sacrifices (mahāyajñas) one is pitryajña, which acc. to some (such as Kātyāyana) means tarpana, while according to Manu ILL. 81 it means śrāddha and the Sṃ C. (I. p. 208) provides that one should follow one's śākhā. The same remark applies to the number of handfuls of water offered in tarpana (Sṃ C. I. p. 191 and Madanapārijāta p. 286 ). About the month of pregnancy in which the ceremony of sīmantonnayana was to be performed each person was to follow his own gṛhyasūtra (Sṃ C. I. p. 17, and Par. M. I. part 2 p. 22 ). The same holds good as to the day of nāmakaraṇa (Sṃ C, I. p. 21, Par. M. I. part 2 p. 25 ). It is not necessary to multiply exampleṣ According to Gaut. XI. 21-22 and others already cited above, the king has to enforce the usages of guilds (śreṇi) and corporationṣ Several such usages have been cited above (pp. 487-488 ) .