Hindu Law and Custom (Recht und Sitte) c10.113

c10.113

§ 52. Ordeals. Between oaths and ordeals² there is only a difference of degree but there is no difference of quality ; for this reason the term divya “divine judgment” may also comprehend the oath and the divine judgments too are signified by sapatha “oath.”³ In simpler cases only the oath is to be taken but in serious and important cases the ordeal is ordained and the value of the stolen, embezzled or otherwise disputed property is estimated in gold in order to decide whether an oath or an ordeal is to be applied and in the latter case also to decide which one (Vi. 9, 2-17 ; Nār. 1, 250 ; Bṛh. 10,7). It is a necessary condition for an ordeal that the other party should take upon itself the fine or other punishment which is eventually decreed in case of defeat. As a rule, the defendant performs the ordeal, but according to special conditions the plaintiff too may perform it. Ordeals effective for one side only, where the opposite party is not punished in case of reverse are ordained in exceptionally heinous crimes, particularly high treason, and also when king suspects one of his own officers or if anybody wishes to remove some suspicion about himself by means of an ordeal (Vi. 9, 22; Nār. 1,257,269 f.; Quot. 6,³; Y. 2,95 f.). According to Pitām. 2,11 only the ordeal of the sacred libation, the easiest of them all, may be performed as the one-sided ordeal. Kāty. 9, 18¹ in some cases also allows substitutes in ordeals. In all divine judgments, in conformity with their religious character, special ceremonies are observed, particularly invocations and prayers by means of which the judge or the accused try to secure the co-operation of the Deity. The chief judge, by order of the king, shall conduct and superintend the whole procedure like a priest in a sacrifice. A writing is fastened on the head of the accused, on which the plaint and a prayer are written (Pitām. 2, 26--28; Nār. 2, 276, 195 etc.). The ordeals shall be performed in public, best in the court hall, or at the gate of the royal palace, or before a temple, or at a crossing (Nār. 1, 265).