History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1065
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1065
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v4.c63.1065.1
Various attempts have been made to explain why in Bengal alone the laws of succession and inheritance should diverge materially from the laws prevailing in the rest of India. In two learned papers 'on the origin and development of the Bengal school of Hindu Law' contributed to the Law Quarterly Review (vol. XXI for 1905 pp. 380-392 and vol. XXII for 1906 pp. 50-63) Mr. Justice Saradacharan Mitra tries at some length to advance a theory of his own: 'The commercial spirit of the newly formed nation in the eastern corner of the Indian peninsula with its deltaic character and nearness to the sea, the new ideas which other nations trading with it were bringing in every day, the necessary admixture of races in some parts of the country, the religion of Buddha which for centuries was here the religion of the sovereign as well as of the people and the influence of the Buddhistic *tantras* combined to bring about a law of property dissimilar in material respects from the rules propounded by Brahmanical sages of old and explained and commented upon in the Mitākṣarā and the books based on the same'.
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His idea is that, as Buddhism profoundly affected the position of women and as tantras like the Mahānirvāṇa subscribed to the exaltation of the feminine element in nature, the ancient law of property, particularly in relation to women, came to be affected and conceptions of individual ownership, of freedom from restrictions on alienation and of the rights of females arose in Bengal which were incorporated by Jīmūtavāhana in his Dāyabhāga. With the greatest respect to the learned writer, it must be said that the grounds he urges are far from convincing. A thorough examination of his thesis cannot be undertaken here for want of space. But a few remarks must be made. As regards maritime activity the West coast of India was far more in touch with seafaring and commerce with the West than even Bengal, as the mention of the ports of Barugaza (Broach) and Kalliéné (modern Kalyan) by Greek writers, the finding of hoards of Roman coins and the existence of Syrians on the West Coast clearly establish. Buddhism had spread to central and western India as early (if not earlier than) the period when it could have spread to Eastern Bengal and Assam. Sanchi, Bhilsa, Bharhut, the Nasik and Karla caves bear eloquent testimony to the influence of Buddhism in central and western India for centuries before and after the Christian era. Besides as Mr. Justice Mitra himself admits 'Buddhism had not its own law of property' (Law Quarterly Review vol. XXI p. 388).
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Buddhist countries like Burma themselves borrowed their laws of succession and inheritance from the Manusmṛti. Vijñāneśvara is far more liberal to women than Jīmūtavāhana, who does not allow any woman to succeed as heir unless she is expressly mentioned as an heir in the smṛti texts. The Mahānirvāṇa-tantra treats a sister and stepmother as near heirs and allows even a paternal uncle's widow and son's daugther to succeed; but under the Dāyabhāga these are not at all heirs. One branch of the Mitākṣarā school, viz. that of the V. Mayūkha in Western India is far more liberal about the claims of women than any school. The Marumakkatayam and Aliyasantan law in force in some districts of South India and among certain communities like the Nambudri brāhmaṇas and Nairs go to the other extreme in their regard for women but no one has so far traced that law to Buddhist or Tantric influence. The peculiarity of the Dāyabhāga, viz. the principle of religious efficacy is far more remote from rules of affinity given in the Mahānirvāṇa-tantra than the principle of consanguinity espoused by the Mitākṣarā school. Mr. Justice Mitra is wrong in his estimate of the age of Jīmūtavāhana. As stated above (on p. 557) Jīmūtavāhana relies on authors like Udyota and the smṛtis of Devala and others. It is best to admit that no satisfactory explanation can be given of the peculiar doctrines of the Dāyabhāga. They have an indigenous and independent origin and growth.