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CHAPTER -1

1. INTRODUCTION

1.1 BACKGROUND

Hindu Law is a body of rules, customs and usages guiding the beliefs and ways of life of the Hindus. There are two schools of thought about Hindu law, namely Dayabhagamimansa and Mitaksaramimansa.

According to Britannica Dictionary, Mimamsa means Reflection or Critical Investigation in Sanskrit .It is one of the six orthodox systems (darshans) .The aim which is to give rules for the interpretation of the Vedas, the earliest scriptures of Hinduism, and to provide a philosophical justification for the observance of Vedic ritual. Vedas is composed of four parts: The Samhitas, the Brahmanas, the Aranyakas and the Upanishads. The first two parts are generally focused on the rituals and they form the Karma-kanda portion of the Vedas. The latter two parts form the Jnana-kanda (concerned with knowledge) portion of the Vedas. Because Mimamsa is concerned with the earlier parts of the Vedas (called the Karmakanda), it is also referred to as Purva-Mimamsa (Prior Study), or Karma-Mimamsa (Study of the Acts). Vedanta, which deals with the later portion of Vedic literature called the Upanishads, is called Uttara-Mimamsa (Posterior Study), or Jnana-Mimamsa (Study of Knowledge).Jaimini is credited as the chief proponent of the Mimamsa system. His work is called Mimamsa-Sutra written around the end of the 2nd century A.D. Mimamsa-Sutra is the largest of all the philosophical Sutras which is divided into 12 chapters.

Hindu law is the foundation of the legal system in Nepal, India, south east countries including some parts of Africa where Hinduism is followed. The first codified law that applied in Nepal called MulukiAin(the Country Code) introduced in 1854,was based on the traditional approach of the Hindu Dharma Shastras or legal treatises called Manu Smriti. In Kenya1 Hindu Law including the Hindu Code is generally applicable in family matters, while the case is similar in Tanzania2, Uganda3 and to a lesser degree in Surinam as well as the British West Indies4.

1.2 OBJECTIVES

The main objectives of this research were to study the principle of Mimansa as a part of Hindu law.

1 See Derrett, Introduction to Modern Hindu Law, p. 538-46 2 See Derrett, Introduction to Modern Hindu Law, p. 546-49 3 See Derrett, Introduction to Modern Hindu Law, p. 549-55 4Derrett , The Hindu Conception of Law, p. I-157.

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1.3 RESEARCH PROBLEM

This study aims at answering the following question: Is mimansha the foundation of Hindu law?

1.4METHODOLOGY

The methods used: The research started with the wide search in the websites, journals, published articles in the magazines and the local newspapers.

Data analysis: The research was primarily analytic in scope .The essential materials were gathered from the internet, journals, books and consultations. Relevant literature review was carried out.

1.5 LIMITATION

Given the practical difficulties in accessing the journals, the study mostly deals with the principles of Mimansa and some of its application. However, since Hindu law is a wide topic the study does not cover all the aspects of Hinduism.

1.6ORGANIZATION OF STUDY

The research paper consists of 3 sections first section deals with Hindu philosophy and principle of Mimansha while the second part comprises of analytic overview of different instances of Hindu law and final part consists of conclusion and recommendation.

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CHAPTER - 2

2.1Hindu Philosophy Classical Hindu Philosophy has six schools (shatdarshan) all of which aim at Moksha (liberation).

PurvaMimansa is one of these schools, and according to it one can achieve Moksha by performing Yagya (sacrifice) in accordance with the Shastras. The Shastras consist of Shruti and Smriti, the former being superior to the latter. Shruti consists of the four Vedas, the Brahmanas, the Aranyaks and the Upanishads. Brahmanas are treatises written in prose which prescribe methods of performing various Yagyas. To every Veda one or more Brahmanas are attached. Thus, the Aitareya Brahmana is attached to the Rig Veda, the TaitareyaBrahmana to the Black Yajur Veda, the ShatapathaBrahmana to the White Yajur Veda, and the TandyaBrahmana to the Sama Veda.5

Shankaracharya was a proponent of Uttar Mimansa (also known as Vedanta), according to which Moksha can be achieved by knowledge of Brahma. Shankaracharya preached that Jnanakanda (the Vedantic Path) is superior to Karmakanda (the performance of Yagya). He shifted the emphasis in the Shrutis from the Brahmanas to the Upanishads, and his view was accepted, and ever since Vedanta became the dominant school of Hindu philosophy.

However, though PurvaMimansa lost importance to Vedanta in Philosophy, its importance remained high as before. It must however be clarified that the Mimansaks were not jurists. Their aim was to perform the Yagya properly, for they sincerely believed that this was the means to achieve moksha.

2.2 The Principle

The Mimansa Principles distinguish between obligatory statements and non-obligatory statements. The main obligatory rule is called a Vidhi (or a Pratishedh, if it is in negative form). There are four types of Vidhi:

1. UtpattiVidhi, or a substantive injunction (e.g. 'perform the agnihotra') 2. ViniyogaVidhi, or applicatory rules (e.g. 'with curdled milk perform the agnihotra') 3. PrayogVidhi, or rules of procedure 4. AdhikaraVidhis (rules regarding rights and personal competence).

Apart from theseVidhis, there are also certain quasi Vidhis called niyamas and parishankhyas, but it is not necessary to go into details here. Vidhis are found in Brahmanas6.

The main non-obligatory statement is known as an Arthavada. An Arthavada is a statement of praise or explanation. Arthavada is like the preamble or statement of objects in a statute. An Arthavada has no legal meaning by itself. It helps to clarifyVidhi. Sometimes a Vidhi is also seen 5The Mimansa Principles of Interpretation by M. Katju 6The Mimansa Principles of Interpretation by M. Katju

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in the form of Arthavada7. This situation has necessitated the need for evolving a system of interpretation. Six axioms of interpretation have therefore been developed for the interpretation of shastras.They are:

(i) The Sarthakyata axiom, which means that every word and sentence must have some meaning.

(ii) The Laghava axiom (Gauravahdoshah), which states that that construction which makes the meaning simpler and shorter is to be preferred.

(iii) The Arthaikatva axiom, which states that a double meaning should not be attached to a word or sentence occurring at one and the same place. Such a double meaning is known as a Vakyabheda, and is a fault (dosh).

(iv) The Gunapradhan axiom, which states that if a word or sentence purporting to express a subordinate idea clashes with the principal idea the former must be adjusted to the latter, or must be disregarded altogether.

(v) The Samanjasya axiom8which states that all attempts should be made at reconciliation of apparently conflicting texts.

(vi) The Vikalpa axiom, which states that if there is a contradiction between two legal rules having equal force then rules with higher legal norm is to be adopted.e.g. aShruti in relation to Smriti, by the Badha principle9 the former Shruti prevails.

It may be mentioned here that the Mimansaks made every effort to reconcile conflicts, and held that Vikalpa was to be resorted to only if all other means of reconciliation failed, for Vikalpa had eight faults (dosh).

Apart from the above mentioned axioms of interpretation there are the four well-known general principles of interpretation in Mimansa. viz.:

(i) The Shruti Principle, or the literal rule.

(ii) The Linga principle (also called Lakshanaartha) or the suggestive power of words or expressions.

(iii) The Vakya Principle, or syntactical arrangement, and

(iv) Prakarana, which permits construction by referring to some other text in order to make the meaning clear.

7K.L. Sarkar: Mimansa Principles 8 K.L. Sarkar: Mimansa Principles 9 Lord Denning: The Discipline of Law

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The first principle (Shruti) is to be resorted to if

(i) The meaning of the text is clear, and

(ii) It comes with the intention.

But there are texts whose meaning seems to be clear, but to give that literal meaning would totally undermine its intention. For example, if a literal meaning is to be given to the English law which forbade a layman to 'lay hands' on a priest, the layman who wounded a priest with a weapon would not be doing anything illegal.

We see therefore that the literal rule will sometimes lead to absurdity and totally efface the intention of the law. The Mimansaks were great intention seekers, and the Linga, Vakya and Prakarana principles all aim at finding the intention of the law.

2.3 Application of Mimansa Principles10

Mimansa Principles were used in different applications like marriage,adoption,inheritance and succession.

Marriage:According to two schools of thought about Hindu law, Dayabhagaand Mitaksara, Marriage was of eight kinds of which the first four were approved and the last four unapproved. They were (i) Brahma: The best form of marriage in which the bride, decorated with armaments, is given away to the bridegroom, who is learned and of go