व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

S. I. 1. 12-18 ] CONFLICT OF SMRTIS
M p 51 18-p 61 3 ]
In case of conflict between two smrtis reasoning ( or decision ) based
upon the practices ( of the old ) is of greater force ( or authority¹ ).

• Bṛhaspati blames him who does not take reasoning into consideration
  ( but merely follows the letter of the texts ) :
  The decision ( of the case ) should not be given by merely relying upon
  s'āstra, for in the case of a decision void of reasoning loss of dharma
  results
  Bṛhaspati ( p. 287 vv 28-31 ) says that the ( king ) should take into
  consideration the usages of the country and the like :
  The dharmas ( modes of right conduct or usages ) of a country, caste
  or family that were introduced in by-gone times should be preserved intact
  ( as they are ), otherwise the subjects become agitated ( they resent inter-
  ference in their usages ); people become disaffected and the forces
  (strength or army ) and the treasury ( of the king ) become depleted
  The maternal uncle's daughter is accepted in marriage by brāhmanas
  of the south; in madhyades'a² ( central India ), ( brāhmanas ) become
  hired labourers and craftsmen and eat cow's flesh, eastern ( brāhmanas )
  eat fish and their women are addicted to illicit intercourse ; in the north
  women are addicted to drinking and can be touched by men even when in
  their monthly courses On account of the acts ( specified ) these ( in their
  respective countries ) should not be liable to undergo prāyas'citta
  (penance) or to incur judicial punishment
  The word 'pūrve' means 'living in the east'. In some ( works ) the read-
  ing is 'sarve' ( for 'pūrve' ). 'Sarve' ( means ) brāhmanas and ( men of )
  other ( castes ), 'damah' means 'dandah' (legal punishment), some ( writers )
  maintain that the mention in some smrtis of prāyas'citta and the like in the
  case of these acts applies to countries not mentioned in this passage ( of
  Bṛhaspati ), while others who explain ( 'prāyas'cittadama' ) as the punish-

1. The Mit explains that in case of conflict between two smṛtis texts ratiocination
   which assigns to each of them its proper place by looking upon one as containing the rule
   and the other as containing the exception ( and such other methods of interpretation ) is of
   superior force, being based upon the practice of the old ( who pursue the rule laid down in
   one text and avoid the other ) Nyāya means 'rule of interpretation' The word 'nyāya'
   may also mean 'the decision' In that case the meaning is that in case of conflict between
   two smṛti texts, the rule of decision should be to find out what the usages of the people are
   and to decide accordingly Viśvarūpa gives two other senses of this passage and reads
   'smṛter virodhe'. This text of Yāj contains a rule somewhat similar to the doctrine that
   equity rather than the bare letter of the law should be followed In Bhau v Sundrabar Bombay
   Printed Judgments 1874 p 250 at pp 251 and 252 the texts of Yāj II. 21 and Br are referred
   to and the text of Yāj is translated as 'usage is of force for their construction'. Vide also
   Chunilal v Surajram 33 Bom 438 at p 489 (= 11 Bom L R. 708) where it is said that
   Nīlakantha cites Yājñavalkya's text that where there is a conflict between two or more
   smṛtis that one should be accepted which is conformable to equity.
2. Madhyadeśa is the tract between the Himālaya and the Vindhya, to the east of the
   place where the Sarasvatī disappears and west of Prayāga ( Allahabad ). Vide Manu. I. 21.

• P. 7 (text)