History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.613

v4.c63.t2.613

Kāt.¹⁶⁷² 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 is. 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 texts. 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 dictates 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 application. He also states that in the case of the conflict of laws by which the parties are governed śāstra prevails. Pitāmaha¹⁶⁷³ 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 occupies a square low table in the hall of justice, when she is struck with dice by the judicial officers and then she gets her husband's property (this is a reminiscence of Nirukta III. 5 explaining Rg. I. 25. 7), in the north there is a custom that when certain persons come on behalf of a bridegroom seeking for a virgin in marriage and they are fed at the house of the girl's father then it is implied that there is a promise to give that girl in marriage to that particular bridegroom. These two customs are not opposed to any śruti or smṛti (and even the V. P. p. 10 refers to the second as prevalent in the north and Madhyadeśa). But Medhātithi mentions other local usages that are opposed to smṛti e. g. grain is lent in spring and in the autumn of the same year double of it is taken. This is opposed to the rules of smṛti laying down rates of interest.