The fact that litigation in classical Hindu law “rests on four feet” (catuṣpād) is well known. The texts enumerating and defining the four elements have been discussed repeatedly in recent scholarly literature. Most of these writings center on the fact that, among dharma, vyavahāra, caritra, and rājaśĀsana, each latter one bādhate “checks, prevents, sets aside,” the preceding one(s). This leads to various —conflicting— theories on the relative role of the four “feet,” and, especially, to efforts at explaining the obvious, but unexpected, importance given custom and royal decrees.

This article does not intend to deal with the relations between dharma, vyavahāra, caritra, and rājaśĀsana. It will concentrate on caritra, and, more specifically, on one term which has been used —once(!)— in connection with it: pustakaraṇa.

The term caritra has been defined by most texts in which the “four feet” of vyavahāra have been enumerated. One of the simplest definitions appears in a verse attributed to Vyāsa (DhK 1.235):

Elsewhere in a stanza attributed to Bṛhaspati (9.6; DhK 1.99), deśasthiti occurs again, but as one of two types of caritra, the other one being based on anumāna:

Jolly (2.23) translates:

This paper provides the first complete translation into English of “a most interesting letter written by Father Bouchet in 1714 from Pondicherry to a great man in France” (Nelson 1881: 1188). Except for the first few paragraphs, the letter is entirely devoted to the administration of Hindu law. Although the letter has not remained unnoticed, it has never been made available elsewhere than in its original setting: the Letters édifiantes et curieuses and their German and Italian translations.

The author, Jean Venant Bouchet, was born at Fontenay-le- Comte, France, on April 12, 1655. He became a novice in the Society of Jesus on October 1, 1670. In 1688 he left for India, where he was put in charge of Trichinopoly and the surrounding area. Because of civil troubles in the city he established himself at Ahur, twelve miles south of Trichinopoly. He built a church, and carried on in grand style. In 1702 he was transferred from the Maduré mission to the Carnate mission, of which he became the Superior. He then lived at Tarkolan, in North Arcot District.

On November 6, 1703, Charles de Tournon, papal legatus a latere, arrived in Pondicherry, to investigate Jesuit practices. Sickness prevented him from visiting any part of the inland mission. However, until his departure in July 1704, he gathered data on the practices in question, notably from Charles Bertoldi of Maduré, and from Bouchet.

The beginning of the twelfth book of the Manusmṛti is explicitly devoted to “the ultimate retribution for (their = the four castes') deeds” (MDh 12.1) or “the decision concerning this whole connection with actions” (MDh 12.2). This topic is, again explicitly, concluded at 12.82ab: “All the results, proceeding from actions, have been thus pointed out.” MDh 12.82cd introduces a related but different topic: “those acts which secure supreme bliss to a Brāhmaṇa,” which is concluded at 12.107ab: “Thus the acts which secure supreme bliss have been exactly and fully described.” I shall take the first of these passages in “the most important Dharmaśāstra” as the basis for the following discussion. I shall supplement it with data from other passages in Manu and compare these with similar passages from other texts, in order to reconstruct the theory of karma and rebirth as it appears in Dharmaśāstra literature. On the other hand, I shall exclude from this study all data from later commentaries. In addition to the fact that much of this literature, insofar as it relates to karma, remains unpublished, it is not possible at this point to present a balanced picture even of the printed commentaries in the field of dharma.

MDh 12.1–82 exhibits a strange mixture of general considerations on karma and saṃsāra, on the one hand, and different systems of reincarnation, on the other. One gets the impression that passages which originally belonged to a variety of sources —or were independent units— have been collected by the compiler of the Manusmṛti and put together in succession, often without the slightest transition.

After a chapter “On Punishments,” in which all kinds of general principles about punishments are set out, the Indian Penal Code sets forth another chapter to “General Exceptions” to criminal liability. The commentators of the Code arrange the 31 sections of this chapter IV under seven headings: judicial acts (ss. 77.78), mistake of fact (ss. 76.79), accident (s. 79), absence of criminal intent (ss. 81–86.92–94), consent (ss. 87–90), trifling acts (s. 95), and private defence (ss. 96–106).

The treatment of the last item in this enumeration starts as follows (s. 96):

And in the following sections the extent and the limitations of this exception to criminal liability are dealt with in detail.

This is the situation as created under British influence by the Indian Penal Code, i.e., Act XLV of 1860. But the Indian people did not await the interference of British jurists to recognize the right of private defence. Anybody who has studied criminal law in the ancient and medieval texts of Hindu law will have met this principle adopted unreservedly.

Before starting the discussion of the real subject, a preliminary remark should be made about the term “law” used in the title of this paper. Western people have come to know the Mānava-Dharmaśāstra under such titles as Bühler's The Laws of Manu (cf. Loiseleur-Deslongchamps 1830 and Jolly 1882–83). For the same Western people, however, this word law has a very strictly circumscribed connotation: a law to them is a prescription passed and voted upon in the one or two existing legislative assemblies, approved by the head of the state, be he a king or a president, and to be adhered to by the people immediately after its official publication. It should be remembered, then, that in ancient India there was not such a separate concept as “law.” What is called “law” nowadays was merely a very small portion of the much more comprehensive doctrine of dharma. In view of this, the learned Dr. P.V. Kane has done well to entitle his voluminous work, of which the fourth volume has been recently published, History of Dharmaśāstra, adding in parentheses: “(ancient and medieval religious and civil law).” Nevertheless if we use the term “law,” it simply means that this article is concerned with that part of the Dharmaśāstra the contents of which correspond to the rules of conduct which in modern democracies are passed by the legislative assemblies.

Some time in 1914 Chanbasava, a widow from Dharwar District —at the Southern end of what was then the Bombay Presidency— had a quarrel with her late husband Ramanna's brother's son, Hanmappa. Hanmappa filed a suit to claim that he was Chanbasava's —and her late husband's— adopted son. He failed to establish his claim in court, and, within two days, “revenged himself for his failure” by murdering Chanbasava. Hanmappa was convicted of murder and, under Section 302 of the Indian Penal Code, sentenced to transportation for life.

The decision of the criminal court did not, however, solve the civil issue. Hanmappa, the murderer, was also heir to Chanbasava's estate, and he had two sisters, Kenchava and Gangava, who would inherit if Hanmappa was not disqualified as heir to Chanbasava. At the same time there was another nephew, Ramanna's sister's son, Girimallappa, who would inherit, and he alone, if Hanmappa was disqualified. Girimallappa went to the civil courts to establish his claim.

The Anglo-Indian civil courts were faced with the problem: can a murderer inherit his victim's estate? or, even if he loses all beneficial rights personally, is he, for the sake of the inheritance, existent or non-existent? The case was decided by the First Class Subordinate Judge at Dharwar, H.V. Chinmulgund. It was appealed to the High Court in Bombay, before Chief Justice Sir Norman Macleod and Mr. Justice Charles Fawcett. The decision of the Bombay High Court was appealed again, before the Judicial Committee of the Privy Council, at Westminster in London.

The Fourfold Subdivision of the Reply

It is a well known fact, that in all sources dealing with ancient Hindu adjective law four different types of legal reply have been neatly distinguished (Kane 1930–62: 3.300–301). This fourfold subdivision of the reply might perhaps even be said to be one of the more stable and constant factors among the endless series of enumerations and subdivisions to be found in the ancient Indian law books.

Inasmuch as a clear insight into the said four types of reply will prove necessary in order to fully appreciate the intricacies called forth by the mixed reply, at first the main types of reply shall be briefly defined and illustrated here.

In the first place, confession (satya, saṃpratipatti) is the statement in which the defendant acknowledges the truth of the facts mentioned in the plaint (Vyāsa 1.24).

Secondly, at least as far as the age of the Dharmaśāstras is concerned, a reply is said to be a reply by way of denial (mithyā, mithyottara) when the defendant contradicts the facts referred to in the plaint (KS 167).

Later on, at the time when Dharmaśātra literature —and all other branches of learning as well— becomes deeply influenced by the concepts of Indian logic (Nyāya) a much more subtle definition comes to the fore.

Every student of Dharmaśāstra knows that Jīmūtavāhana's Dāyabhāga, which “is of paramount authority in modern British Indian courts in Bengal” (Kane 1930–1962: 1.322), defends the view that the head of the family is the sole owner of the joint family property. The other members do not acquire any proprietary rights, for instance by birth, as is the case in other Hindu “legal texts.” They only become owners at the time when the right of the present owner ceases to exist, by his death or otherwise.

Jīmūtavāhana himself (1.13) introduces a possible objection to this theory. The opponent states that in order to become the owner of an object, there has to be acquisition (arjana). And arjana is an activity (vyāpāra) on the part of the acquirer (arjayitṛ). Therefore, the acquirer acquires the status of an owner contingent upon his activity of acquisition. For instance, birth is an activity of the son (putravyāpāra); it constitutes acquisition of a proprietary right in the joint property. Consequently, the son acquires this right while his father is still alive, not after his father's death.

Jīmūtavāhana (1.21) refutes this objection. The activity of the acquirer does not make him the owner. A person's proprietary right can very well come into being by an act on the part of someone else:

Consequently, the death of the father —literally, the father's act of dying— can create his son's proprietary right, without any activity on the part of the son.

The Greek author Strabo (quoted by Timmer 1930, from Strabo XV 1.53) has preserved a statement of Megasthenes, the Greek ambassador to Candragupta Maurya, according to which theft was an extremely rare phenomenon in the India which he visited.

And the quotation continues: “…, agraphois kai tauta nomois chrōmenois oude gar grammata eidenai autous, all aēo mnēmēs ekasta dioikeisthai.”

The latest editor of the fragments of Megasthenes’ Indica, B.C.J. Timmer, thereby following her predecessors, translates as follows: “…, and this notwithstanding the fact that they use unwritten laws. For they do not know the script, but they administer everything from memory” (1930: 240–41).

Many a page has been written to discuss the possible date of the introduction of writing in India, but at least it seems to be well established now that writing was known in India by the time when Megasthenes lived at the court of Candragupta Maurya.

Consequently, we fully agree with Timmer when she argues that Megasthenes’ statement on this point must be false: “No doubt, Megasthenes’ opinion that the Indians did not know writing was a misunderstanding” (245).

However, Timmer pleads extenuating circumstances in favor of Megasthenes’ apparent inconsistency. Indeed, she says, it was a misunderstanding “based upon the fact that Megasthenes rightly observed that the laws were unwritten and that oral tradition played such an important part in India” (245). According to Timmer, “the laws were indeed mainly unwritten; it was not customary with the Indians to reduce their sacred books (and the Dharmaśāstras belong to them) to writing” (245).

1. On March 8, 1720, at the age of fifteen, Jacob Mossel (November 28, 1704-May 15, 1761) left Texel in Holland en route for Batavia, as a young sailor on board “de Haringtuijn” of the Chamber” Enkhuizen. He arrived in Batavia on September 24, 1720.

On May 7, 1721 he sailed westward again, toward Negapatam which had been captured by the Dutch from the Portuguese in 1658 and was to remain one of their main Indian possessions until 1781. He spent about twenty years in this town, building up a successful career which, in 1740, led to the post of “Raad extraordinair van Nederlandsch Indië” (Counsel extraordinary of the Netherlands Indies). Here is a survey of the positions he successively held at Negapatam:

An even more brilliant career was to follow after he returned to Batavia in 1742; he was elected Governor-General in 1750. However, this part of Mossel's life, as well as his renewed but unsuccessful contact with India in 1759, lie beyond the scope of this study.

Introduction

Before dealing with the subject of matrimonial causes according to the Dharmaśāstra a few comments on the title of this paper may not be out of place. These comments will be mainly of a methodological nature.

A first comment is that the Dharmaśāstra does not have a Matrimonial Causes Act, as is the case in England since 1857. In other words, in the whole of ancient Hindu law one would look in vain for a treatise, or even for a separate chapter, dealing exhaustively with what we call matrimonial causes. The result is that the data which I shall present to you as a more or less coherent whole are really drawn from various unrelated chapters of Dharmaśāstra literature.

This first comment leads me on to my second preliminary remark. The fact that no Sanskrit text deals with matrimonial causes as such should not make you think that the data upon which I shall have to work are few in number. In reality they are numerous, far too numerous to be dealt with at all completely in a short paper. Moreover, they are not only numerous; as is the case with most other topics of ancient Hindu law, here, too, the various sources often seem to contradict or even to be repugnant to each other.

Don Davis has done scholars a great favor. He has collected together in one place much of the work of one of the bright lights of American academia. Prof. Ludo Rocher is a member of the American Philosophical Society, former President of the American Oriental Society, and Chairman of the Board of Trustees of the American Institute of Indian Studies. All significant distinctions in an important career. But what is most compelling, most distinctive, and most enduring about Prof. Rocher's career are two things: (1) his broad, comprehensive, and always rock-solid contributions to our understanding of classical India and (2) his generous, tireless, and effective mentoring of generations of students. Many of the most important Indological positions in the country are held by Prof. Rocher's students. Don Davis is part of that paramparā and he has given us the great gift of a reprinting of work whose collective impact has moved Indology forward steadily and consistently for more than 50 years. Those of us who continue to rely on dog-eared and heavily marked up copies of these articles and who have sent students hither and yon to make new copies are grateful for this service.

Future generations of students and scholars will more easily understand the impressive breadth and depth of Rocher's work as a result of this collection. Their value and their validity endure. They are superb examples of what Davis refers to as the “philological particular.” The focus and the technical mastery represented by these articles are what give coherence to such breadth of scholarship. We are fortunate to have this collection, but this collection’s real impact will be on future generations of scholars who will as a result be more likely to be able to access this important work. Many of the journals that Rocher published in are not available electronically, and the half-life of Festschriften is diminished by the increased dependency of libraries on electronic collections.

I was inspired to collect Prof. Rocher's writings on Hindu law and Dharmaśāstra in the process of finding and gathering certain of his articles for use in a course on Hindu law. It became apparent that Rocher's fundamental writings were obscured by virtue of their dispersion in a variety of Festschrifts and less popular journals -in contrast to the regularly reprinted editions of works by Lingat and Derrett, perhaps the two other great Western scholars of Hindu law in the mid-to-late 20th century. It was also true that Rocher's ideas had not received adequate attention in the most recent work in the field. To my mind, this was very unfortunate and I felt the problems could best be rectified by making Rocher's works available in a more centralized and readily available format. I hope that this final collection, an incomplete, but more than representative assemblage of Rocher's Kleine Schriften, will make the publication of work on Hindu law without an appreciation of Rocher's contributions more and more difficult. The most interesting reward of re-reading Roch-er's works and cataloging his ideas has been the challenge they pose to my own writing on the subject, which I had thought was already heavily informed by Rocher's direct and indirect influence on my training.

I have been superbly assisted in the preparation of this collection by three fine graduate students from my department, Torrey Goad, Jeremy Holiday, and John Stavrellis who together completed the laborious task of re-keying all of the included articles from their original contexts. I am especially grateful for Mr. Goad's meticulous attention to diacritical and tabular details.

The first sūtra of Vātsyāyana's Kāmasūtra pays homage, not only to kāma, but to all three components of the trivarga:

The reason for this initial statement is provided in the next sūtra:

Neither Schmidt's (“Weil sie in dem Lehrbuche immer wiederkehren”) nor Upadhyaya's (“The three Aims of Life that are dealt with in this Shastra”) translations adequately express the meaning of this sūtra. What Vātsyāyana claims is that he pays homage to dharma, artha, and kāma, because they are the three topics which are “genuine, relevant” (prakṛta) to a śāstra, i.e., to any śāstra.

The fact that all three elements of the trivarga are interconnected has been stressed elsewhere in the Kāmasūtra. In a sequence of sūtras which will be discussed later in this article, and in which Vātsyāyana suggests that different aspects of the trivarga shall be the primary ones in different periods of a person's life (kālaṃ vibhajya), at the same time he emphasizes that, throughout life,

That means that in any period of life in which one of the elements of the trivarga is the primary one, the other two should be natural adjuncts of it, and that, under no circumstances, any one of the trivarga should be detrimental to the other two. Again, later in the same chapter:

Any discussion of Hindu conceptions of law has to start with the basic observation that nowhere in the Hindu tradition is there a term to express the concept of law, neither in the sense of ius nor in that of lex. Not until the arrival of the colonial powers was the concept of law used on the subcontinent, by Europeans and through the medium of European languages. It was not until 1772, the year in which it was decided that, “in all suits regarding inheritance, marriage, caste, and other religious usages or institution” (Acharyya 1914), the Hindus should be governed by their own laws, that an effort was made to study and translate the Sanskrit books in which the Hindu laws were codified. These books happen to be the Dharmasastras, treatises on dharma. Hence, the equation established by the Western editors and translators of these books was “dharma-śāstra” equals lawbook, code, or institute. They also established the equation: dharma equals law.

To be sure, Indians have followed this well-established practice. When it comes to expressing the concept of law in modern India through the medium of modern Indian languages, however, different terms are used. For instance, recent dictionaries of India's official language, Hindi, normally give two terms for law, one borrowed from the Arabic-Persian (Muslim) tradition, kānūn, and one from the Sanskrit (Hindu) tradition, vidhi. In addition, when the Indian Constitution was translated into Hindi, vidhi became the official translation for law, both in the text of the Constitution and in the English-Hindi wordlist published along with it by the Government of India.

0.1 On June 17, 1956 the President of India gave his assent to The Hindu Succession Act 1956 (Act No. 30 of 1956). As stated in the Preamble, it is “an Act to amend and codify the law relating to intestate succession among Hindus.” Both terms are important: “amend” and “codify.” Indeed,

Smṛtikāras, commentators, customs, usage, schools of law, judicial decisions: they all are part of the long and checkered career of the law of inheritance and succession in India, which is now amended and codified by The Hindu Succession Act, 1956 (See also Mulla 1959; Derrett 1957, 1963).

§1. The so-called “mixed castes” in classical India have been studied in the past. The most comprehensive collection of data appears in P.V. Kane's History of Dharmaśāstra (1930–62: 2.69–104). In this paper I want to return to the original texts on which these data are based, schematize some of the materials, and try to draw certain conclusions. The texts are the Dharmasūtras, the early Dharmaśāstras, and Kauṭilya's Arthaśāstra, as follows:

– GDh, 4.16–21 (Stenzler's edition, Bühler's translation) = 4.14–17 (Ānandāśrama edition);

– BDh 1.16.6–8 + 1.17.3–8 (Hultzsch's edition, Bühler's translation) = 1.16.7–8 + 1.17.2–8 (Kashi edition);

– VaDh 18.1–6, 8–9;

– ViDh 16.2–6;

– MDh 10.6, 8–9, 11–12, 16–17;

– YDh 1.91–95;

– AŚ 3.7.20–30.

It should be noted that one Dharmasūtra, that of Āpastamba, does not discuss the matter of mixed castes.

§2. On the other hand, Gautama gives two sets. A first set is followed by a second one, introduced by: “Some say…” The interesting point is that not only the content but also the way of presentation in both sets are totally different; I shall return to this point later (§29).

§3. Baudhāyana also introduces mixed castes twice, one after the other. The situation is far more confused in this treatise, and considerable text-critical research will be required to solve the problem. The first passage follows immediately after the rules on the number of wives members of the four varṇas are allowed to have: from four to one.