Legal Pluralism : The Essence of India’s Classical Legal ordering

Dr. A. P. Singh

Lecturer (Law)

Govt. Dungar College

Bikaner (India)

First draft of an article published in Christoph Eberhard & Nidhi Gupta (eds.), Legal Pluralism in India, Special Issue of the Indian Socio-Legal Journal, Vol. XXXI, 148 p (95-106)

Introduction

The coming of the world closer as a result of increasing mechanisation of life and scientific and communication revolution has given rise to renewed interests in inter cultural studies the world over. This is a significant development for a legal theorist, in as much as normative diversity or how the different cultures construct their normative universe present the problem of normative validity in new forms. The multicultural setting of Indian civilisation presents a unique model of legal plurality capable of accommodating diverse normative orderings. It is not that the presence of a multiplicity of normative orders or the gap between local law-ways and the most authoritative legal doctrine are phenomenon unique to India. However, while in the western context the plurality of normative orders has been presented to be marginal or even pathological at one time, in India the diversity of normative ordering has been openly embraced[1] and plurality celebrated with aplomb. In this paper I attempt to present one aspect of this legal plurality in India’s classical legal ordering and seek to argue that a better appreciation of this might provide fresh ideas about law and legal process and the interactive relationship between legal and social system.

1. Legal Pluralism : The Concept.

By legal Pluralism, I mean a situation wherein two or more legal systems coexist in the same social field, interacting, interpenetrating, mixed or overlapping and sometimes even superimposed upon one another. According to Pospisil, “Every functioning subgroup in a society has its own legal system which is necessarily different in some respects from those of the other subgroups, such as family hierarchy ranked and essentially similar in rules and procedure”.[2] Legal Pluralism is constituted by an intersection of different legal orders i.e. by inter-legality. Inter-legality is the phenomenological counterpart of legal pluralism. For the proper understanding of this concept it is also necessary to contrast this with the dominant understanding of law in the western world, and which many parts of the third world have inherited much in form and substance. This understanding is of legal formalism or legal positivism wherein the legal rules and reports of case law are taken as the universe. This approach remains predominant in legal education and legal research and it tends to render law as distinct, unified and internally coherent. Legal centralism, i.e. notion that lawyers, court and prisons are the only form of ordering, that law and ordering takes place in court houses and law offices and that the law owes its existence to the state system, the politically superior sovereign, continues to rule the roost.

The law in the broad sense of the whole legal system with its institutions, rules, procedures, remedies, is society’s attempt through state to control human behaviour and prevent anarchy, violence, oppression, and injustice by providing and enforcing orderly, rational, fair and workable alternative to the indiscriminate use of force by individuals or groups in advancing or protecting their interests and resolving their controversies. This logic puts legal institutions and the state at the core of all social discipline. An active Hobbbesian war of every man against every man turning life into solitary, brutish, nasty and short, is hinted at darkly as the violent alternative.

At least in theory the sovereign power, the ultimate, legal authority in a polity can legislate on any matter and can exercise control over any behaviour within the state. Indeed in a highly centralised political system, with advanced technology and communication apparatus, it is taken for granted that legal innovation can effect social change.[3] Roscoe Pound perceived the law as a tool for social engineering. Underlying this view is the assumption that social processes are susceptible to conscious human control and the intrument by means of which this controls is to be achievecd is law. In such a formulation, law is a short term measure for a very complex aggregation of principles, norms ideas, rules, practices and agencies of legislation, administration, adjudication and enforcement, backed by political power and legitimacy. The complex law thus condensed into one term is abstracted from social context in which it exists and is spoken of as if it were an entity capable of controlling that context. Pospisil remarks that “the law of western society traditionally is analysed as an autonomous logically consistent legal system in which various rules are derived from more abstract norms.”[4] These norms are arranged in a sort of pyramid derived from a basic norm or sovereign will such an analysis presents a legal system as a logically consistent whole, devoid of internal contradictions whose individual norms gain validity from their logical relationship to the more abstract legal principles implied ultimately in the sovereign’s will and in a basic norm.

Legal Pluralism sees no reason why law should be associated with state system or be considered as coterminus to it. Ordinary experience indicates that law and legal institutions with their whole panoply of courts and law enforcement agencies can only affect a degree of intentional control of society, greater at sometime less at others. That limited degree of control and predictability is daily inflated in the folk models of lawyers and politicians all over the world. The social reality is a peculiar mix with rules and other actions that is choice making, discretionary, manipulative, sometimes inconsistent sometimes conflictual. Much legislation today either does not achieve what it purports or sets out to do or when it does achieve specified goals, it also spins of many side effects that were not anticipated. Conventional failures or unexpected side effects tend to attribute particular instances to inadequate information or bad judgement or political deception. That is as it may be in particular cases. But it is possible that there are also deeper causes of transformation that operate pervasively even under the best conditions of information, expertise and relative political honesty.[5]

It may be noted that legal pluralism stems from sociological pluralism, and no society is completely homogenous. Even segmentary societies in a sense are divided. According to J. Griffith, individual social fields are not uniformly governed by a single system of law. Several kinds of laws are normally found to be in operation. Legal pluralism as such consists in the multiplicity of forms of law present within any social field. It might appear rather curious as to how under these conditions are unitary legal myth took root in societies, with most divisions. Norbert Rouland believes that precisely because the state needs to extend its influence over deeply heterogeneous societies, the state needs to deny the existence of these divisions and perpetuate the myth of unity. This is an imperative which does not exist to the same extent in traditional societies, which are also plural and where political authority is less differentiated than in modern societies and has less sweeping political ambitions.

Sally Falk Moore, talks about semi-autonomous social field instead of sub groups. A semi-autonomous social field is defined and its limits identified not by its type of organisation but a character of a processual type, residing in the fact that it gives birth to norms and by constraints or incentives ensures their application. The space within which a certain number of corporate groups are in relation one to another constitutes a semi-autonomous social field. A large number of fields of this type may be connected one to another in such a way that they form complex chains, in the same way as the network of social relations which link individual, may be compared to chains which have no ends. The interdependent connection of a large number of semi-autonomous social fields constitute one of the fundamental characteristics of complex societies.

J.Griffith,[6] talks of two kinds of legal pluralism. Pluralism tolerated by the state and pluralism, which escapes the control of the state. The later kind of pluralism, according to Griffith is authentic pluralism. It is the sworn enemy of the unitary ambitions of the state and the state seeks either to eliminate the pluralism by prescribing certain practices or to regulate it by recognising certain manifestations of pluralism by enacting statutes for minorities etc. This kind of pluralism is merely an eyewash or a façade and serves the interests of unitary and centralising polity.

Once the plurality of legal system is established it becomes possible to look at the legal phenomenon without the presence of an archaic state system with all its institutional panoply. As Griffith puts it, law does not in the nature of things enjoy any particular relationship with the state and does not need the state to function. The concept of universalism and thereby looking the other from the so called universalistic viewpoint requires a thoroughgoing rethinking. And this rethinking on the part of legal scholars have proved it beyond doubt that traditional and modern societies are not as far apart as were originally thought out to be. Norbert Rouland, after studying the kinship, landholdings and contractual relations concludes that “inspite of evolutionist prejudices, there is no radical distinction between law in modern societies and traditional societies. Human kind has from its origins shown such a capacity for invention that it would be illusory to believe that modern societies are more evolved than traditional societies. In the field of law many traditional societies have not only found solutions, which are original when compared to our own, but in addition already know what we claimed to have invented. Law judgement, punishment, the married couple contracts and so on. The richness of their experiences forces us to rethink our notion of unilinear direction in history.”

For the purpose of understanding this pluralist character of law, Etienne Le Roy talks about multi-legalism, that permits to open up the western view of law, based on the perception of law as norms and as general impersonal rules, to a more pluralist approach to legal phenomenon. To illustrate the multi-legalist approach to law Etienne Le Roy, develops the concept of Legal Tripod, the three feet of law, or the foundation of law. These three feet of law consists of general impersonal rules (State law) Customs, and Habitus, (System of lasting dispositions). These three feet of law are valorised by different societies in different manners. For example western system would put the three feet in the priority order of , rules, customs, and habitus, the animist tradition of Africa would put them in the priority order of custom, habitus and rules and so on. Similarly, different societies valorise different conceptions of individual and social order depending on their different cosmo-visions. To understand this dynamic complex whole in their own setting multi-legal approach can be of great help. It may help a western observer to move away from his own anthropo-centric vision and engage in a dynamic processual anthropology, wherein the question on rule of law or human rights can take different turn, when it is no man, but the cosmic or divine that play the central structuring principle of a world view. This may also help in the overall understanding of the working of legal phenomenon in the western world itself.

2. Understanding the Indian Paradigm.

With this broad understanding of legal pluralism, when we turn to the Indian paradigm, the scene is peculiarly pluralist, though glossed over by the common law system of English origin. India a veritable microcosm of the world has always been a queer mixture of various faiths, religions, a place where the cultures of the world meet, constituting an environment of composit culture. It was for this reason that Pandit Jawaharlal Nehru called India the “the museum of world religions”. Indeed, the very paradigmatic setting of India has been pluralist all along. Even today the land mass called India, spread over 3.28 million sq km of area inhabited by a thousand million plus population, with every imaginable kind of a weather pattern from minus 40 degree celsius in greater Himalyan region to 50 degree celsius temperature in the deserts of Rajasthan and temperate weather of coastal regions, 20 official languages written in 16 different scripts, around 2000 dialects, 16 well demarcated agro-climatic zones and almost all religions of the world well and adequately represented, presents a mind boggling variety and plurality. And all this has a bearing on India’s liberal , secular, republican , politico-legal system. Within this variety the legal ordering of Hindu social setting itself presents a varitable mixture of faiths, beliefs, customs and traditions.

“ Indian Culture”, concludes Shri Aurobindo, “did not deface nor impoverish the richness of the grand game of human life, it never depressed or mutilated the activities of our nature. On the contrary, subject to certain principle of harmony and government , it allowed them their full often their extreme value. Man was allowed to fathom on his way all experiences to give to his character and action a large rein and heroic proportions to fill in life opulently with colour and beauty and enjoyment”.[7] Indeed Indian spirit reveled in variety and plurality.

For the purpose of understanding the classical legal ordering of India, in its proper perspective, it is necessary to contrast it with the concept of legality which characterise the western legal ordering. Law in its proper sense is understood to express the will of all represented by the state system. Even in cases where the law has declared merely customary law or case law in the form of codes, “its imperative force”, writes Robert Lingat, “resides entirely in the popular will or constitutionally established authority which has sanctioned it, and not in the power of the usage or custom that lies behind it and has in a sense given birth to that law”.[8] Law which effectively governs relations amongst people in directly derived from this law i.e. sanctioned by the sovereign. In classical Indian legal ordering this notion of “Legality” has been replaced by the notion of “Authority”. The precepts of smriti are an authority because they are the expression of a law, which rules human activity in the sense we understand that word in natural sciences.” Every one knows that nobody can escape from that law and therefore every body tries to conform to those standards. Intrestingly enough this law has no constraining power in itself. It really puts forward an ideal a “lightpost” that everybody attempts to conform to , but in his own way. Here comes into picture the custom. And though the custom may not be able to meet the standards of precepts perfectly, it in no way diminishes the authority of that precept. The “text of law floats alone, incessantly worked upon, discussed and orientated in diverse ways.”[9] Manusmriti, undoubtedly the most reliable source of classical law of India, was nevertheless, never found in a uniform application all over India. Custom prevailed, though very often in variance with Manusmriti, but never opposed to it, and thus preserving the authority of Manusmriti precepts. The law in action, contained within itself a variety of solutions permitting interpretations to diversify its effects according to plans and periods. Such a system may not appear perfect for a mind trained in western legalism, but it presented a perfect paradigm of pluralistic governance in a country of mind boggling variety and diversity of population. “Profiting from maximum flexibility , the Hindu system sustained the unity of Indian world, thanks to the undisputed authority of law. That unity was not realisable at a lower level but realised at the higher level in an ideal participation amongst all Hindus.[10] That ideal received the dynamic imparted to it by faith by Hinduism itself with the result that the custom and written law were inextricably woven together to give rise to law.

Thus the flexibility, diversity and pluralism has always been the hallmark of India’s legal ordering. However the British conquest with legal and judicial reforms accompanying it for the purpose of securing a better administration of justice so as to enable the colonial masters to collect more and more revenue from the already parched lands of Indian peasantry brought the concept of legalism in its tag. In 1772 when Warren Hastings laid the foundation for civil courts of Diwani in Bengal and Bihar and Orrissa, it appeared to be a rather inoffensive move. However for the Indian legal system particularly for the Hindu legal ordering it introduced a paradigm shift in as much as the concept of authority came to be substituted by the concept of legality in the longer run. The “floating text” of law now came to be mortified in the rule of “stare decisis”. Now the judgement was to be delivered by an English judge, though following the opinion of a pandit, in default of a detailed knowledge of his own, this judgement was to become the source of law for future cases. Whilst in the classical system the judgement had no other object or effect but to put an end to a dispute brought before the judge, the judgement in the classical Hindu system left the authority of the law intact always available thereafter for new interpretations, but now the English judge was called upon to define law and fix interpretations once and for all. The judgement which in the classical system was basically one of the ways in which the law could be understood, now in the hands of an English judge became a sole and valid expression of law. “The commentaries and digests which were nothing more than diverse forms and interpretations of the preceptual or scriptural law came to be refered as the records of customary law and once the judicial interpretation was put on it in the form of a gloss, the art of commentaries and digests started being dried up, for now the law was to be found in the rule of stare decisis and the preceptual law or scriptural law, the authority so far, ceased to exert any influence on this new legal rule.[11] This way the reform intended to ameliorate the judicial administration ended in subverting the traditional pluralism. This way the new English judge who was intended to be the interpreter of scriptural laws turned out to be the creator of laws for future generations. Thus the dynamic plurality of flexible diversities, turned into sterile legality, thwarted and suppressed the fecundity of an open ended system capable of accomodating every conceivable faith or belief system.

3. Indian Pluralism Exemplified : The Adoption Paradigm.

For the purpose of exemplifying the flexibility and plurality of India’s classical legal ordering which despite the onslaughts of every kind from foreign conquest to imposition of new legal ordering, continue to retain the elements of primordial flexibility, I take resort to discuss the law of adoption which as J.D.Mayne puts it, “has evolved from a few text and a metaphor”.[12] But before we discuss these texts and metaphors, let us understand what the word adoption really means. Adoption is a fiction of Hindu law, by virtue of which a person ceases to be the child of natural parents and becomes the child of one’s adoptive parents, provided that the necessary legal requirements and formalities are fulfilled. “It is an institutionalised practice through which an individual belonging by birth to one kinship group acquires new kinship ties that are socially defined as equivalent to congenital ties. These new ties supersedes the old ones either wholly or in part”[13] Under Hindu law adoption is primarily a religious act intended to confer spiritual benefit on the adoptor and therefore some of the rules have been held to be mandatory and compliance with them regarded as a condition of validity of adoption. As Supreme Court too puts it in Mudaliar vs Mudaliar[14] that the substitution of a son of a deceased for spiritual reason, is the essence of adoption and the subsequent devolution of property is a mere necessity to it. The validity of adoption has to be judged by spiritual rather than temporal considerations and the devolution of property is of only secondary importance”.

However the secular motive too was not the less dominant and the object of adopting a child has varied from humanitarian motive of caring and bringing up a destitute child to a natural desire for a son as an object of affection, a protector in old age and a heir after death. According to J.D.Mayne the spiritual motive was not so largely responsible for the increasing vogue of Dattaka as generally imagined”. [15] When owing to wars and other causes families tended to become extinct or rights to large estates and principalities were in geopardy on the extinction of leading families and when claims had to be advanced before the rulers of the country for the recovery of estates, adotion must have become a fertile expedient for reviving or enforcing such claims. Adoption of a son to the last owner was a simple and intelligible device compared to the difficulty of proving or establishing the claim of a widowed rani or a remote male heir.[16]

In fact the religious motive for adoption never altogether excluded the secular motive. The propriety of this motive was admitted by the Sanskrit writers themselves. In the ceremonial of adoption given by Baudhayan, the adopter receives the child with the words, “I take thee for the fulfilment of religious duties. I take thee to continue the line of my ancestors”.[17] The Dattaka Mimansa quotes a text that a man should adopt a son for the sake of funeral cake, water and solemn rites, and for the celebrity of his name. And the author of Dattaka Chandrika admits, that even where there is no spiritual necessity a son may and even ought to, be adopted, for the celebration of name and the due perpetuation of lineage.[18]

As has been noted above the whole of the law of adoption in classical legal ordering has evolved from a few texts and a metaphor. The metaphor is that of Saunaka, that the boy to be adopted must bear the reflection of a son. The texts are those of Manu, Vasistha, Baudhayan, Saunaka and Sakala. Manu says, “that boy, equal by caste, whom his mother or his father affectionately gives, confirming the gift with a libation of water in times of distress to a man as his son, must be considered as an adopted son (Dattaka).[19] Of the man who has an adopted son possessing all good qualities , that same son shall take the inheritance, though brought from another family. An adopted son shall never take the family name and the estate, of his natural father ; the funeral cake follows the family name and the estate, the funeral offerings of him who gives his son in adoption cease as far as that son is concerned. Vasistha says, “(1)Man formed of uterine blood and virile seed proceeds from his mother and his father as an effect from its cause. (2)Therefore the father and the mother have power to give, to sell, and to abandon their son. (3) But let him not give or receive in adoption as only son. (4) For that must remain to continue the line of ancestors. (5) Let a woman neither give nor receive a son except with her husbands permission. (6) He who desires to adopt a son, shall assemble his kinsmen, announce his intention to the king, make burnt offerings in the middle of the house reciting the Vyahritis [20]and take as a son a not remote kinsman, just the nearest among his relatives”.

There are other major treatises also on adoption, namely, Dattaka Chandrika, Dattaka Mimansa, and Baudhayana Grihyasutras etc. But they all boil down to the same position as has been discussed above, and one may summarise from this the essential elements and conditions of validity of adoption under classical Hindu Law.

1. The person adopting should be without an issue.[21]

2. Only one person, that too generally a male person can be adopted.[22]

3. A widow can adopt in the name of her husband, but an unchaste widow cannot.[23]

4. An only son cannot be given in adoption.[24]

5. The person adopted should be of the same caste and Gotra.[25]

6. The person being adopted can be given in adoption only by his parents. As such the orphan cannot be given or taken in adoption, as there is nobody to give such person in adoption.[26]

7. Giving and taking is a necessary condition.[27]

8. Dattahomam ceremony is also necessary.[28]

9. Dattakaputra i.e. the adopted son is a complete substitute for aurasa son.[29]

This preceptual or scriptural law in India’s classical Hindu social setting does not provide the complete picture of law in action of those times. Rather it was what I had termed in this article elsewhere as “Lightpost Law”, which everybody tried to conform to, but in his own manner. It was an ideal to be achieved and though not actually achieved in action remained a valid authority for the socio-political system to follow, but did not impose itself that way. “Society was thus organised on the model of itself, with which it was presented, as if it had actually achieved it”.[30]

The law in action in this setting was the customary law, which fulfilled the felt necessities of the community concerned without impairing the authority of scriptural law. As there were numerous communities and diverse social settings, the law contained within itself a variety of solutions permitting interpretations to diversify its effects according to peculiar objective of a given community. That’s how it was a perfect pluralist system orientated for a diversified community like India. In this section an attempt has been made to exemplify as to how within the given legal framework of adoption laws (as discussed above) the diverse communities in India, evolved a dynamic which served their diverse interests in diverse situations, without in any way compromising with the authority of law.

It has been noted above that one of the basic principles of adoption in the classical Hindu system was that a person who wants to adopt a son should have no issue.[31] However the pregnancy of adopter’s wife or the existence of a son in embryo of a co-widow did not invalidate the adoption made by a widow.[32] Similarly when a person had only one son and that son had become ascetic or has entered a religious order, such a person could adopt a son.[33] Further where an only son becomes an outcaste or renounces Hindu religion, his father would be entitled to adopt another as his son, because as Katyayan puts it, “of one who is excommunicated the heritage, the oblation of food and libation of water ceases.”[34] Since by virtue of The Caste Disabilities Removal Act of 1850, the outcast son will not fortfeit any legal right by loss of caste, but he will not retain the religious capacity to perform the obsequial rites, and the father’s right as it stood under the Hindu law to make an adoption when his son becomes an outcast is not taken away. Due to the Doctrine of Religious efficacy of sonship emphasised by the Privy Council, where an only son is a patita or a disqualified person according to the Smritis, the father will be entitled to adopt.[35] In Madras, it has been rightly held that the existence of a son, who is not only disqualified from inheritance but also incompetent to perform ceremonies is no bar to an adoption by his father.

It has also been seen that the adopted son must be of same caste as his adopting father[36], that is, as Brahman may not adopt a Kshatriya, or vice versa. The rule in the Saunaka Smriti which is next to Vasishtha the chief authority on the matter, expressly prohibits an adoption outside the caste, for it says that adoption in all classes must be made in their own classes only and not otherwise. Mitakshara is conclusive on the point. Commenting upon the text Manu says that the Dattaka son must be a savarna or of the same class. [37] The adoption of a person belonging to a different primary caste is therefore invalid. But an adoption of a person belonging to different primary caste is therefore invalid. But an adoption of a person from a subcaste of the same primary cast is valid.[38] On another point i.e. the age of the person being adopted, there has been differences of opinion. In Bengal, Benares, Bihar and Orissa, the adoption must be before Upanayana that is before the boy is invested with the sacred thread.[39] This rule also applies in the Madras State ; but if the person adopted is of the same gotra as that of the adopter, the adoption may be made even after upnayana, provided it is made before the marriage.[40]

Thus in Bengal, Benares, Bihar and Orissa a person can be adopted before he is invested with the sacred thread. According to most of these schools the adopted person must not be married.[41] However amongst Jains, since the object of adoption is purely secular, i.e. to secure a heir and perpetuate the adopter’s name and has no religious significance whatsoever, there is no restriction of age or marriage and a married man could also be adopted amongs jains. Under “Khola” system of adoption prevalent in the former princely state of Bikaner the conditions of adoption applicable Under Hindu law are not followed strictly. In Ramanlal v. Mst Nanda, [42] it was held that “Under “Khola” system none of the conditions of Hindu law are essential. Grown up and married persons having children are made “Kholas”…”[43]. This is well recognised custom and form of adoption which clearly goes against the established rules of Hindu Law. Under “Khola” system even a person from another caste could be adopted in Khola by making a simple declaration.

It has been a settled rule and has been taken note of earlier that since adoption has the effect of removing the adopted son from his natural into the adoptive family only parents has the authority to give a person in adoption. This point has been emphasised in Vasishtha smriti and in the Mitakshara as well. [44]Though this rule meant that either parent has the power to give but the traditional rule which has come to be established is that the wife can only exercise this power during her husbands lifetime with his assent. This rule has also been taken to understand that since there has to be somebody to give in adoption an orphan can never be given in adoption. Even an adult orphan as such is incapable of being given in adoption, because he can neither give himself away nor be given by anyone with authority to do so.

As against this there were well established customs which continue to this day that do not take any account of this rule. Under “Khola” system, prevalent in the former princely state of Bikaner, this rule was not followed and orphans were validly taken in adoption. In fact “Khola” system had even done away with the ceremony of giving and taking and as such there was no restriction as to an orphan being taken in adoption.[45] In the Khati community of Madhya Pradesh too this rule is of giving by parents is not accepted and as such the orphans can be taken in adoption.[46]

Giving and receiving are absolutely necessary to the validity of an adoption. They are the operative part of the ceremony, being that part of it which transfers the boy from one family into another.[47] The physical act of giving and taking must be proved even if there is expression of consent and a deed of adoption. The evidence must be free of suspicion and fraud. [48]But the Hindu law does not require that there shall be any particular form so far as giving and acceptance are concerned. For valid adoption, all that the law requires is that the natural father shall be asked by the adoptive parent to give his son in adoption, and that the boy shall be handed over and taken for this purpose.[49] A mere execution of a will or deed of adoption or oral declaration of intention will not be sufficient in the absence of a clear proof of giving and taking.

It has been noted that under “Khola” system no giving and taking was necessary and a simple declaration by the person taking adoption to that effect would be sufficient.[50]

According to Dattaka Mimansa and Dattaka Chandrika, the Datta homam or oblation to fire is most important rite in the case of three higher classes and is necessary to the establishment of filial relation. It is therefore established that the filial relation of adopted sons is occasioned only by the proper ceremonies.

Contrary to this under the “Khola” system as noted above no such ceremony was required. It was specifically laid down in Ramanlal v. Mst Nanda[51] that the declaration of an intention to take a person in “Khola” or having been taken a person in “Khola” would be sufficient proof of valid adoption. Further it is now settled rule that amongst Sudras, no Datta homam are necessary in addition to the giving and taking of the child in adoption.[52] So also in Punjab and among Jains, no ceremonial whatever is required, the transaction being regarded as a matter of civil contract, though the formality of giving and taking is necessary. Among Agrawal in Berar the only essential ceremony is the tying of turban, i.e. Pagdi ceremony. In some other cases the Datta homam ceremony can also be postponed, which may be performed either at the time of the gift or afterwards. It can even be performed after the death of either of natural father or of the adoptive father.

Another settled rule of adoption which has been laid down by Manu and supported by Mitakshara and Dattaka Chandrika and Dattaka Mimansa as well, is that an adopted son occupies the same rights and privileges in the family of the adopter as the legitimate son. In fact Mitakshara not only makes the adopted son as the heir to the adoptive father but to the kinsmen as well. The theory of adoption depends upon the principle of a complete severance of the child adopted from the family in which he is born, both in respect to the paternal and maternal line, and his complete substitution into the adopter’s family as if he were born in it. It follows that an adopted son is the continuator of his adoptive father’s line exactly as an aurasa son, and that an adoption so far as the continuity of the line is concerned has a retrospective effect.[53] Manu makes the transfer of the adopted son shall never take the family name and the estate of his natural father… the funeral offerings of him who gives his son in adoption ceases as far as that son is concerned. The Dattaka Mimansa and the Dattaka Chandrika expressly lay down that the adopted son is a substitute for a real legitimate son both for purposes of inheritance and for purposes of funeral oblations and that he is a sapinda to the members of the adoptive family and that the forefathers of his adoptive mother are maternal grandisiers.[54]

Deviation to this rule of adopted son being completely absorbed and made heir in a new kinship are found in the classical Hindu law itself. And where after an adoption a legitimate son is born to the adopter, the adopted son does not, amongst the twice born classes, share equally with the aurasa son, but is entitled to a lesser share on a partition of joint family property.[55] Contrary to this rule in Madras, Bengal and other provinces except Bombay, it is settled that the adopted son shares equally with the afterborn aurasa son. Bombay High Court, however, refused to follow the Dattaka Chandrika and held that amongst shudras, as among other classes, the adopted son gets only one fifth of the whole estate.

Apart from this kind of diversity of normative ordering in adoption matters, there have been certain unique practices of adoption which do not fit in any traditional thinking on the subject. “Dwamushyayana” son or the concept of a son having two fathers, is one of such type of adoption. Originally it appears to have been applied to a son who was begotten by one man upon the wife of another, but for and on to perform the funeral oblation both of his actual and his fictitious father.[56] This is the meaning in which the term is used in Mitakshara ; but sons of this class are now obsolete. Another meaning is that of a son who has been adopted with an express or an implied understanding that he is to be the son of both fathers. This was a temporary kind of adoption known as Anitya Dattaka, wherein the boy was taken from a different Gotra, after the tonsure was performed in this natural family. He performed ceremonies of both fathers and inherited in both families. But his son used to return to his original gotra.[57] This form too appears to have become obsolete now.

The prevalent kind of “Dwamushyayana” is one in which a son is taken in adoption under an agreement that he should be the son of both the natural and adoptive fathers. This form of adoption, though appears to be obsolete in Madras and East Coast, is however, prevalent among Nettukottai Chettiars.[58] Among Nambudri brahmans too this form is fully recognised.[59] In Bombay and some parts of the former United Provinces its existence is fully recognised, with the qualification that the onus of proving that an adoption was of this type lies upon those who assert it.

Another unique form of adoption is “Illatom”, which prevails amongst the Reddy and Kamma caste in Tamilnadu and some parts of Andhra Pradesh. It consists in the affiliation of son-in-law, in consideration of assistance in the management of the family property. No religious significance appears to attach to the act. Neither the execution of any document, nor the performance of any ceremony is necessary. The incidents of an illatom adoption have now become crystellised into fixed rules of law by a long course of decisions.[60] To constitute a person an illatom, a specific agreement is necessary. It is not sufficient merely to show that he lived in his father-in-law’s house, assisted his widow or managed property.[61] This has to be established by clear and cogent evidence by the person who relied on it, as it is of an extraordinary character. After the death of the adopter he is entitled to the full rights of a son, even as against natural sons subsequently born or a son subsequently adopted in the usual manner.[62] Supreme Court in P. Laxmi Reddy’s case has observed “ An illatom son-in-law is a boy incorporated into the family with a view to give a daughter in marriage and is customarily recognised as an heir in the absence of a natural born son.”[63]

4. Concluding Remarks.

The law relating to adoption and much other Hindu Law, now stands in codified form, and though still providing reasonable space for customary law in principle seeks to move as far away as possible from the customary and traditional law. Basking in the glory of Common Law system the present legal scholarship in India today seems to be totally oblivious of the continuity of the indigenous elements or projection of traditional patterns of legal ordering. In the legal discourse on policy issues, there appears to be a complete obliteration of indigenous elements. In fact the pluralist tradition in India’s classical normative ordering has never been subjected to systematic socio-legal exposition. Though there has been created considerable amount of literature on Indian law by foreign scholars, these efforts have largely been concentrated on codification and uniformisation of law and legal institutions. The initial efforts of British Indologists were focussed on institutional reforms and development of judicial institutions to serve the interests of the colonial administration. The later efforts have largely aimed at social reform by legal instrumentality or social engineering kind of practices.

The pluralist tradition of India’s classical legal ordering were a complex body of legal learning, linked indirectly and unevenly to governmental practices and to self regulating activities of villages, guilds, castes and other groupings. “Hindu legal learning contemplated broad delegation of regulatory functions to these groups.”[64] In modern times there appears to be an increasing faith in the instrumentality of law for affecting desired changes in the socio-political sphere. The pathology of social sphere is being sought to be addressed and remedied by the instrumentality of legal mechanism. A better understanding and appreciation of the patterns of traditional socio-legal set up would move the focus away from the ideology of legal centralism, suggesting attention to other forms of ordering and their interaction with state law. It might highlight the competing, contesting and sometimes contradictory orders outside state law and their mutually constitutive relations to state law.

This approach entails a shift away from an essentialist definition of law to an historical understanding since any institution of legal pluralism develops over time through the dialectics between the legal system each of which both constitutes and reconstitutes the other in some way. Defining the essence of law, or custom is less valuable than situating these concepts in particular sets of relations, between particular legal orders in particular historical contexts.[65] Further this pluralist perspective would lead to an examination of cultural or ideological nature of law and systems of normative ordering. Rather than focussing on particular rules applied in situations of dispute, this perspective examines the ways social groups conceive ordering of social relationships and of ways of determining truth and justice. Law is simply not a set of rules exercising coercive power, but a system of thought. Sally Falk Moore put it beautifully, “A rule focussed compliance/deviance approach reduces the colourful hurly burly of social life and dynamic logic to so arid a pair of pre-selected and pre-interpreted obedience categories that understanding of what is going on on the ground may be blocked.[66]

This approach shall also facilitate the move away from an exclusive focus on situations of dispute to an analysis of ordering in non-dispute situations. According to Holleman, the dispute situations are exceptional events and therefore misleading guides to the nature of ordering. Study of facilitative law and historical studies of legal change enlighten the dark corners of law which have never been emphasised on, but which represents the rainbow situations of social ordering.[67]

Last but not the least, pluralistic analysis of legal orders leads to the analysis among normative orders and provides a framework for understanding the dynamics of imposition of law and of resistance to law for examining the interactive relationship between dominant and subordinate groups or classes. This feature of pluralist approach is of special significance to Indian situation, as it offers a way of thinking about the possibilities of domination through law and the limits of domination pointing to the ways in which individuals can and do resist. In this sense attention to law in its ideological or instrumental value (such as customary laws in India) examines limits of the ideological power of state law.

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[1] Marc Galanter, Law and Society in Modern India, Oxford University Press, New Delhi, 1992, p.99

[2] Quoted by Norbert Rouland, in “Legal Anthropology”, 1994, Athlone press London.

[3] Sally Falk Moore, Law as a Process : An Anthropological approach, 1993, Routeledge and Kegal Paul, London.

[4] As quoted in Norbert Rouland, (1994) supra f.n.2.

[6] As quoted in Norbert Rouland, supra f.n. 2

[7] Shri Aurobindo, Foundations of Indian Culture, Mira Aditi Centre, Mysore, p.116.

[8] The Classical Law of India, Robert Lingat, Oxford University Press, New Delhi, 1998, p.257.

[11] C. Rama Jois, Legal and Constitutional History of India, Vol. II, M.N.Tripathi, Bombay, 1990.

[12] Hindu Law and Usage, J.D.Mayne, Bharat Law House, New Delhi, 1993, p.351.

[13] International Encyclopaedia of Social Sciences, Vol. I p. 96.

[14] Chandrashekhar Mudaliar v. Kulandaivelu Mudaliar, All India Reporter, 1963, S.C. 185.

[15] Hindu Law and Usage, J.D. Mayne, Bharat Law House, New Delhi, 1993, p.349.

[19] J.D.Mayne, Hindu Law and Usage, Bharat law House, New Delhi, 1993, p. 351.

[20] Vyahritis are the invocations of specific powers of God by specific names for specific purposes.

[21] Dattaka Mimansa, I (4 & 13), Dattaka Chandrika, I ( 4 & 6).

[22] Dattaka Mimansa, V (15 ) and Manusmriti IX (168)

[23] Dattaka Mimansa I (22): Shyam lal v. Saudamini, (1870) 5 B.L.R. 362.

[25] Manusmriti IX (168, 141, and 142); Dattaka Mimansa II (74).

[28] Dattaka Mimansa V (50); Dattaka Chandrika II ( 16 & 17).

[32] Nagbhusan v. Sheshamma, (1881) 3 Mad 180.

[35] Amarendra v. Sanatana, (1933) 60 IA 242.

[38] Kusum Kumari v. Satya ranjan (1903) 30 Cal 999.

[39] Mulla’s Hindu Law, 15^th Edition, para 480.

[44] Vasishtha Smriti, XV, (para 2 and 5) and Mitakshara I-IX- 9.

[45] Om Prakash v. Tarachand, WLN (UC) 1977, 44.

[48] Madhusudan Das v. Narayanibai, 1983 SC 114.

[49] Maroti bansi v. Radhabai, AIR, 1944 Nag. 60.

[50] Heeral v. Mahadeo and others, 1955 RLW, 146.

[51] Ramanlal v. Mst Nanda and others, BLR 1931, p.25.

[53] Banarasi das v. Sumat Prasad (1936) 58 All, 1019.

[58] Muthiah v. Controller of Estate duty , AIR, 1968 1863.

[59] Vasudevan v. Secy of State, (1888) 11 Mad 157.

[60] Subba Rao v. Mahalakshmamma (1931) 54 Mad 27.

[61] Gadiyam Narayadu v. Venkamma (1912) 22 MLJ 265.

[64] Marc Galanter, Law and Society in Modern India, Oxford University Press, New Delhi, 1992. P.99.

[65] Sally Engle Merry, Legal Pluralism, in Peter Sack’s Law and Anthropology, the International library on essays in law and legal theory.