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History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63: Vyavahāra (Law and Administration of Justice)

History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63

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Vyavahāra (Law and Administration of Justice)

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That to administer justice impartially and to punish the guilty were among the prime functions of the sovereign has been stated above (p. 57). The king was deemed to be the fountain (i. e. the distributor) of justice. Kauṭilya³²³ (I. 19) prescribes that the king was to look into the disputes of citizens and country people in the 2nd part of the day (divided into eight parts). Manu (VIII. 1–3) states that the king desirous of looking into the disputes of people should enter the *sabhā* (the hall of justice) accompanied by brāhmaṇas, ministers and should there decide every day the causes of litigants. Śukra IV. 5·45 is the same as Manu VIII. 1, Vas. 16·2, Śaṅkha-Likhita, Yāj. I. 327 and II. 1, Viṣṇu Dh. S. III. 72, Nār. (I. 2), Śukra IV. 5·5, Mānasollāsa II. 20, verse 1243 state that the administration of justice was the personal concern of the king. The Mit. on Yāj. II. 1 says that protecting the subjects is the highest duty of a king and that that duty cannot be discharged without eradicating and punishing the wicked, which latter requires that the king should administer justice (vyavahāradarśana). Medhātithi on Manu VIII. 1 also says that protection consists in the removal of troubles, secular and spiritual (adṛṣṭa). Manu VIII. 12 and 14 (= Nār. III. 8–9 p. 42) personifies the administration of justice as Dharma incarnate by representing that when justice is administered the dart of adharma or falsehood by which dharma is pierced is taken out from the body of Dharma. Yāj. (I. 359–360) declares that the impartial administration of justice yields the same rewards as solemn vedic sacrifices do. In this way administration of justice was held to be a very sacred duty. Manu VIII. 128 (= Vṛddha-Hārīta VII. 194) declares that a king who punishes those that do not deserve to be punished and who does not punish those that deserve punishment incurs great obloquy and goes to hell. Vas. (19·40-43) prescribes one day's fast for the king and three days' fast for the *purohita* when the king lets off those that deserve punishment and three days' fast for the king and the *kṛcchra* penance for the purohita when the king punishes the innocent. The Mahābhārata³²⁴ (Anuśāsana 6·38 and chap. 70) and Rāmāyaṇa say that if a king intent on pleasures does not show himself to litigants who approach him for decision, he would suffer like king Nṛga. The Śukranītisāra (IV. 5·8) also says the same thing. In the Rāmāyaṇa (VII. 53–54) king Nṛga is said to have been cursed to become a chameleon for a long period by two brāhmaṇas who had a dispute about the ownership of a cow and could not see the king for many days. Megasthenes (Frag. XXVII. pp. 70–71) says 'the king remains the whole day in court without allowing the business to be interrupted.' Kaut.³²⁵ (I. 19) gives the advice that, when in court, the king should not cause petitioners or litigants to wait long at the door, for when a king makes himself inaccessible, those who are near him create confusion about what should or should not be done, whereby the king engenders disaffection among his subjects and makes himself a prey to his foes. The king's court³²⁶ of justice was called *dharmasthāna* (Śaṅkha-Likhita), *dharmāsana* (Nārada I. 34, Manu VIII. 23, Śukra IV. 5·46) or *dharmādhikaraṇa* (Kātyāyana and Śukra IV. 5·44). 'The place where the decision of the truth of the plaint (lit. the cause or root of dispute) is carried on by a consideration of the rules of the sacred law is called the *dharmādhikaraṇa* (the Hall of Justice)'—says Kātyāyana. Kālidāsa (Śākuntala V) and Bhavabhūti (Uttararāmcarita I.) employ the word dharmāsana.

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³²³ द्वितीये पौरजानपदानां कार्याणि पश्येत् । कौ. I. 19.

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³²⁴ अर्थिनामुपसर्पतां यस्तु नोपैति दर्शनम् । सुखे प्रसक्तो नृपतिः स तप्येत नृगो यथा ॥ महाभारत quoted by दण्डविवेक p. 13; अर्थिनां कार्यसिद्धयर्थं यस्मान्मे नेषि दर्शनम् ॥ अदृश्यः सर्वभूतानां कृकलासो भविष्यसि । ... कार्यार्थिनां विमर्दो हि राज्ञां दोषाय कल्पते । रामायण, उत्तरकाण्ड 53. 18, 19, 25; पौरकार्याणि यो राजा न करोति सुखे स्थितः । व्यक्तं स नरके घोरे पच्यते नात्र संशयः ॥ शुक्र IV. 5. 8; vide उत्तरकाण्ड 53. 6 for very similar words; शङ्खलिखितौ । राजा स्वाधीनवृत्तिरात्मप्रत्ययकोशः स्वयं कृत्यानुदर्शी विमस्वनिवृत्तस्थविरं भद्राणि पश्यति । राजनीतिप्र. p. 134.

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³²⁵ उपस्थानगतः कार्यार्थिनामद्वारासङ्गं कारयेत् । दुर्दर्शो हि राजा कार्याकार्यविपर्यासमासन्नैः कार्यते । तेन प्रकृतिकोपमरिबशं वा गच्छेत् । अर्थशास्त्र I. 19.

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³²⁶ धर्मस्थानं प्राच्यां दिशि तच्चाग्म्युदकैः समवेतं स्यात् । शङ्ख q. in स्मृतितत्त्व (II. p. 19); धर्मशास्त्रविचारेण मूलसारविवेचनम् । यत्राधिक्रियते स्थाने धर्माधिकरणं हि तत् ॥ कात्या० q. in स्मृतितत्त्व (II, p. 19), परा. मा. III. 1 p. 22. The व्य. म. p. 8 reads धर्मशास्त्रानुसारेण अर्थशास्त्रविवेचनम्. The verse as thus read is the same as Śukra IV. 5. 44. Vide स. वि. p. 63 'यत्र स्थाने आवेदितव्यतत्वनिष्कर्षः धर्मशास्त्रविचारेण निर्णेतृभिः क्रियते इति धर्मस्थानम् । अस्यैव धर्माधिकरणमिति नामान्तरम् ।'

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The authors of smṛtis believed that there was a golden age or era of perfect virtue in the dim past, when men were bent only on right conduct, that later ages saw the advent of sinful promptings, that therefore regulation of life by the learned and the king came into vogue (compare Gaut. VIII. 1). Manu I. 81-82 (= Śāntiparva 231. 23-24) state that in the Kṛta age dharma prevailed in its perfection, there was no advent of adharma among men then and that in each of the three succeeding *yugas* dharma declined progressively by the introduction of theft, falsehood and deceit. The Śāntiparva (59. 13 ff) narrates that in the Kṛta age there was no king and no punishment, that gradually kāma (lust) and rāga (passion) began to wield sway and dharma dwindled away. This belief in an ideal or perfect past was universal and was probably depicted in order to induce men to rise higher and higher in goodness and virtue and to make them submit easily to the discipline of government and the priestly requirements. This ideal description of the past is often found associated with the picture of anarchy that reigned in the dim past which was retrieved from horrors by the creation of the kingly office (vide pp. 30-34 above). These diametrically opposite views of the past contained in the same works (such as Manu and the Mahābhārata) probably owe their origin to the desire of the writers to make the common people submit to the absolute rule of kings. Almost all works even from the Ṛgveda (X. 10. 10) downwards believe in the progressive deterioration of religion and morals. A state of anarchy is visualised in a few works only for the purpose of glorifying the great usefulness of the institution of kingship. Nār. I. 1 states³²⁷ 'when people were solely bent on dharma and were truthful, there existed neither administration of law and justice nor hatred nor jealousy. When dharma declined (or disappeared) among men, administration of law and justice came to be introduced and the king was declared to be the decider of disputes and the chastiser (of the guilty)'. Bṛ. also (S. B. E. 33 p. 277) says 'In bygone ages men were pre-eminently virtuous and free from cruel tendencies; now that men are overwhelmed by greed and hatred, judicial procedure has to be declared'.

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³²⁷ धर्मैकतानाः पुरुषा यदासन्सत्यवादिनः । तदा न व्यवहारोऽभून्न द्वेषो नापि मत्सरः । नष्टे धर्मे मनुष्याणां व्यवहारः प्रवर्तते । द्रष्टा च व्यवहाराणां राजा दण्डधरः स्मृतः ॥ नारद I. 1-2; धर्मप्रधानाः पुरुषाः पूर्वमासन्नहिंसकाः । लोभद्वेषाभिभूतानां व्यवहारः प्रकीर्तितः ॥ बृह. q. by स्मृतिच. II p. 1, व्य. प्र. p. 4. Compare Plato in 'Laws' (Book IV p. 485 of the Random House edition) 'There is a tradition of the happy life of mankind in days when all things were spontaneous and abundant'.

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The idea of Dharma took the place of the very ancient conception of *ṛta*. In the Ṛgveda ṛta denotes the supreme transcendental law or the cosmic order by which the universe and even the gods are governed and which is intimately connected with sacrifice. Vide Ṛg. I. 68. 2, I. 105. 12, I. 136. 2, I. 142. 7, I. 164. 11, II. 28. 4, IV. 23. 8–10 (in which the word ṛta occurs ten times), X. 190. 1. On the relation of ṛta and law Berolzheimer in his ‘The world’s legal philosophies’ (translated by Jastrow, New York, 1929) says: “closely connected with the religious and philosophical views of the Aryans are certain fundamental positions in regard to the philosophy of law which in turn became the antecedents of later legal and ethical developments among the Greeks and Romans. Foremost among these philosophical conceptions is ‘rita’, which is at once the organized principle of the universe and the divine ordering of earthly life; as the former it regulates the appearance of the sun and the moon, of day and night and embodies the unchangeable principle that pervades the succession of phenomena; as the latter it is affiliated with purpose and human benefit and is exemplified in the flow of the rivers which fertilize the fields; in the cattle useful to men; in the institutions of marriage, of the monarchical state, of the patriarchal home; and in man’s sense of responsibility for his sins. The derivative conceptions of ‘vrata’, ‘dharma’, ‘dhāma’, ‘svadhā’ represent special aspects of ‘rita’; thus ‘vrata’ refers to any specialized embodied ‘rita’; while ‘dharma’ refers specifically to the moral function of rewarding good and punishing evil” (pp. 37–38). Vide Prof. V. M. Apte’s paper or ‘Ṛta’ in the Ṛgveda (pp. 55–60 of the Silver Jubilee Volume of the Annals of the B. O. R. Institute) in which he tries to prove that ṛta means primarily ‘the belt of the Zodiac’.

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The word *vyavahāra* is used in several senses in the *sūtras* and *smṛtis*. One meaning of vyavahāra is ‘transaction or dealing’ as in Udyogaparva 37. 30 quoted above (on p. 207) or in Āp. Dh. S. II. 7.16-17, I. 6.20. 11 and 16. It also means ‘a dispute, a lawsuit’ in Śānti 69.28, Manu VIII. 1., Vas. 16.1, Yāj. II. 1., Viṣṇu Dh. S. III. 72, Nār. I. 1 and 2, Śukra IV. 5.5. A third sense is ‘legal capacity to enter into transactions’ (as in Gaut. X. 48, Vas. 16·8, Śaṅkha-Likhita (*rakṣed rājā bālānāṁ dhanānyaprāpta-vyavahārāṇāṁ* &c. quoted in V. R. p. 599 ). A fourth but a rare sense is ‘the means of deciding a matter’ (as in Gaut. XI. 19 ‘*tasya vyavahāro vedo dharmaśāstrāṇyaṅgāni* &c.). In this chapter the word vyavahāra is taken to mean ‘law-suit or dispute in a court’ and ‘legal procedure’. This sense is very ancient. In the Delhi-Topra Pillar Edict No. 1 of Aśoka (Corpus I. I. vol. I. p. 123) we have the word ‘*viyohālasamatā*’ (*vyavahārasamatā*) and the word ‘*vyavahāravidhi*’ occurs in Kharavela’s Hāthīgumphā Inscription (E. I. vol. XX. p. 79 ). A ‘*vohārika-mahāmatta*’ (*vyāvahārika-mahāmātra*, minister of justice) occurs in the Mahāvagga, I. 40. 3 and Chullavagga VI. 4·9). In the medieval digests, both law and procedure are sometimes dealt with in one book as in the Vyavahāra-nirṇaya of Varadarāja and the Vyavahāra-mayūkha; sometimes the titles of law are treated of in one work and judicial procedure in another. For example, Caṇḍeśvara composed the Vivādaratnākara (on titles of law) and. Vyavahāraratnākara (on judicial procedure). The word vyavahāra is restricted in some works to judicial procedure alone (as in the Vyavahāramātṛkā of Jīmūtavāhana and the Vyavahāratattva of Raghunandana). The word *vivāda* which means ‘dispute’ is often used as a synonym for vyavahāra in the sense of law-suit or legal procedure or both. In Āp. Dh. S. II. 11·29·5 and in Nār. I. 5 *vivāda* means ‘law-suit’. In the Vivādacandra of Misarumiśra and the Vivādatāṇḍava of Kamalākara both law and judicial procedure are treated of. Yāj. (II. 8 and 305) appears to distinguish between *vivāda* (law-suit) and *vyavahāra* (judicial procedure).

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The word ‘*vyavahāra*’ is defined by several smṛtis and commentators. Kātyāyana gives two definitions, one based on etymology and referring principally to procedure and the other giving the conventional sense having in view a dispute. “The (*upasarga*) *vi* is employed in the sense of ‘various’, ‘*ava*’ in the sense of ‘doubt’, ‘*hāra*’ means ‘removing’; *vyavahāra* is so called because of its removing various doubts” (quoted by V. M.

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p. 283, Par. M. III. p. 7 and Kullūka on Manu VIII. 1).327a This definition places the administration of justice on a high plane. The purpose of all branches of Indian philosophy is the quest of Truth or Reality. The purpose of legal procedure is, according to Kāt., the same viz. to find out the truth when there is a dispute. But there are some points of difference. The philosopher may take his own time in his search for truth; but justice has to be done as quickly as possible. Further, legal procedure has its own method and limitations in finding out the truth, that is, it depends on oral and documentary evidence, while a philosopher's quest of truth may be purely intellectual and subjective. Another definition is: 'When the ramifications of right conduct, that are together called dharma and that can be established with efforts (of various kinds such as truthful speech &c.), have been violated, the dispute (in a court between parties) which springs from what is sought to be proved (such as a debt), is said to be *vyavahāra*'. Hārīta gives an easier definition: 'that is declared to be *vyavahāra* where the attainment of one's wealth (taken away by another) and the avoidance of the dharmas of others (such as those of heretics) are secured with (the help of) the means of proof' (quoted by the Sm. C. II. p. 1). The Mit. (on Yāj. II. 1) defines vyavahāra as 'averment (about a matter) as related to oneself in opposition to another'. Śukra IV. 5. 4 gives another definition. The Vyavahāramayūkha gives a much more elaborate definition (vide text p. 1 and notes pp. 3-4 of my ed.).

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327a वि नानार्थेऽथ सन्देहे हरणं हार उच्यते । नानासन्देहहरणाद् व्यवहार इति स्मृतः॥ कात्या. quoted in व्य. मा. p. 283, कुल्लूक on मनु VIII. 1, दीपकलिका p. 36, which says 'ऋणादानादिनानाविवादपदविषयः निराक्रियतेऽनेनेति नानाशंशयहारी विचारः व्यवहारः।'; प्रयत्नसाध्ये विच्छिन्ने धर्माख्ये न्यायविस्तरे । साध्यमूलस्तु यो वादो व्यवहारः स उच्यते ॥ अपरार्क p. 596, स्मृतित. (II. p. 1), परा. मा. III. pp. 5–7, व्य. प्र. pp. 3–4. This last verse is variously explained. Vide my notes to Kāt. 25. The मदनरत्न (व्यह. Ms. in my possession) explains 'प्रयत्नसाध्ये कष्टसाध्ये गृहक्षेत्रादिके विषये विच्छिन्ने स्वेच्छया भोक्तुमशक्ये सति न्यायविस्तरे न्यायः प्रमाणं विस्तीर्यते प्रपञ्चयते निर्णीयते यस्मिंस्तस्मिन् धर्माख्ये धर्मनामके धर्माधिकरणमिति प्रसिद्धे सभाक्षणे स्थले साध्यमूलको यो गृहक्षेत्रादिविषयो वादः स व्यवहार इति।'; स्वधनस्य यथा प्राप्तिः परधर्मस्य वर्जनम् । न्यायेन यत्र क्रियते व्यवहारः स उच्यते ॥ हारीत q. by स्मृतित्च. (II. p. 1).

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A *vyavahārapada*³²⁸ means 'the topic or subject matter of litigation or dispute'. It is the same thing as '*vivādapada*' which word occurs also in Kauṭ. (III. 16 p. 191 and IV. 7 p. 218) and in Nār. (dattāpradānika 1, abhyupetyāśuśrūṣā 1). Manu VIII. 8 shows that '*pada*' means '*sthāna*'. Yāj. II. 5 defines it as 'If a person, who is set at naught by others in a manner that is opposed to the rules of smṛti and to good usage or conventions, informs the king (or his judge), that is a *vyavahārapada*'. From very ancient times eighteen vyavahārapadas have been enumerated. The underlying idea is that most of the disputes between men can be classified under 18 heads. Even Manu (VIII. 8) was conscious of the fact that the enumeration of 18 vyavahārapadas was a matter of a convenient arrangement and that the number 18 did not embrace all disputes whatever but only the largest number of disputes and the most important among them. Medhātithi and Kullūka make this position quite clear.³²⁹

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³²⁸ व्यवहारः तस्य पदं विषयः । मिता० on या. II. 5; पदं स्थानं निमित्तमिति यावत् । अपरार्क on the same.

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³²⁹ भूयिष्ठग्रहणं प्राधान्यख्यापनार्थम् । अन्येऽपि व्यवहारहेतवः सन्ति यथा निवसनार्थ त्वया मे वेश्म दत्तं तत्र किमित्यर्वाक्संवत्सरादन्यस्मै ददासीति न चेदं दत्तानुपकर्म न ह्यत्र स्वत्वनिवृत्तिरस्ति भोगाज्ञामात्रं वसतः । मेधा. on मनु VIII. 8; भूयिष्ठशब्देनान्यान्यपि विवादपदानि सन्तीति सूचयति । तानि च प्रकीर्णकशब्देन नारदाद्युक्तानि । कुल्लूक on the same. ;

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There is some difference about the number and nomenclature of the vyavahārapadas among Manu and other writers of smṛtis. The following table will give some idea of the divergence as to nomenclature and the sequence in which they are treated of. All do not mention them in the same order as in Manu VIII. 4-7. For example, the order in Yāj. is ṛṇādāna, upanidhi, dāyavibhāga, sīmā-vivāda, svāmipālavivāda, asvāmivikraya &c. Yāj. does not enumerate all of them in one place as Manu and Nārada do.

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| MANU | KAUṬILYA | YĀJÑAVALKYA (acc. to Mit.) | NĀRADA | BṚHASPATI (in Sm. C. II. p. 9) |
| 1 ṛṇādāna | 5 ṛṇādāna | 1 ṛṇādāna | 1 ṛṇādāna | 1 kusīda |
| 2 nikṣepa | 6 upanidhi | 2 upanidhi | 2 nikṣepa | 2 nidhi |
| 3 asvāmivikraya | 11 asvāmivikraya | 6 asvāmivikraya | 7 asvāmivikraya | 8 asvāmivikraya |
| 4 sambhūya-samut-thāna | 8 sambhūya-samut-thāna | 17 sambhūya-samut-thāna | 3 sambhūyasamut-thāna | 4 sambhūyotthāna |
| 5 dattasyānapākarma | 10 dattasyānapākarma (in III. 13 bare mention) | 7 dattāpradānika | 4 dattāpradānika | 3 adeyādya |
| 6 vetanādāna | 11 karmakarakalpa | 11 vetanādāna | 6 vetanasyānapā-karma | 5 bhṛtyādāna |
| 7 saṁvidvyatikrama | 7 karmakarakalpa 4 samayasyānapā-karma | 10 saṁvid-vyatikrama | 10 samayasyānapā-karma | 10 samayātīkrama |
| 8 krayavikrayānuśaya | 9 vikrītakrītānuśaya | .8 krītānuśaya / 16 vikrīyāsampradāna | .9 krītānuśaya / 8 vikrīyāsam-pradāna | 9 krayavikrayānu-śaya |
| 9 svāmipālavivāda | 0 | 5 svāmipālavivāda | 0 | 0 |
| 10 sīmāvivāda | 3 sīmāvivāda | 4 sīmāvivāda | 11 kṣetrajavivāda | 7 bhūvāda |
| 11 vākpāruṣya | 13 vākpāruṣya | 13 vākpāruṣya | 15 vākpāruṣya | 15 vākpāruṣya |
| 12 daṇḍapāruṣya | 14 daṇḍapāruṣya | 14 daṇḍapāruṣya | 16 daṇḍapāruṣya | 16 daṇḍapāruṣya |
| 13 steya | 0 | 18 steya | 0 | 12 steya |
| 14 sāhasa | 12 sāhasa | 15 sāhasa | 14 sāhasa | 17 vadha |
| 15 strīsaṁgrahaṇa | saṁgrahaṇa (IV. 12) | 19 strīsaṁgrahaṇa | 0 | 18 strīsaṁgraha |
| 16 strīpundharma | 1 (no name but subject dealt with in III. 2–4) | 0 | 12 strīpuṁsayoga | 11 strīpuṁsayoga |
| 17 vibhāga | 2 dāyavibhāga | 3 dāyavibhāga | 13 dāyabhāga | 13 dāyabhāga |
| 18 dyūtasamāhvaya | 15 dyūtasamāhvaya | 12 dyūtasamāhvaya | 17 dyūtasamāhvaya | 14 akṣadevana |
| 0 | 0 | 9 abhyupetyāśuśrūṣā | 5 abhyupetyāśuśrūṣā | 6 aśuśrūṣā |
| 0 | 16 prakīrṇaka | 20 prakīrṇaka | 18 prakīrṇaka | 19 prakīrṇaka |

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It will be noticed that Yāj. omits the duties of husband and wife from the 18 topics of vyavahāra as he had already dealt with them in his section on *ācāra*, adds *abhyupetyāśuśrūṣā* and *prakīrṇaka* (miscellaneous wrongs) and splits krayavikrayānuśaya into two and thus gives 20 topics. Nārada (I. 16-19) has the same 15 topics as those of Manu (in some cases under slightly different names), omits svāmipālavivādā, steya and strīsaṅgrahaṇa, adds abhyupetyāśuśrūṣā and another topic viz. prakīrṇaka and splits krayavikrayānuśaya into two, viz. *krītānuśaya* and *vikrīyāsampradāna*. He includes *steya* under *sāhasa* (*sāhasa* verse 21) and also in what is an appendix. Bṛhaspati as quoted in the Smṛti-candrikā (vyavahāra p. 9) names the 18 vyavahārapadas and adds prakīrṇaka. Kauṭilya also adds prakīrṇaka and omits 'steya' under his dharmasthīya section, though he deals with theft elsewhere (as in IV. 8 and 11). It is not to be supposed that the 18 topics were first started by the Manusmṛti. Gaut. XII. 1 mentions *vākpāruṣya* and *daṇḍapāruṣya*, treats of some of the topics without specifying the technical names e. g. he refers to the subjects of saṅgrahaṇa (in XII. 2-3), of theft (XII. 12-13), of svāmipālavivāda (in XII. 16 ff), of ṛṇādāna (in XII. 26-33), of nidhi (in XII. 39), of dāyavibhāga (in XXVIII). Similarly the Āp. Dh. S. speaks in scattered places of some of the topics of vyavahāra such as murder (i. e. *sāhasa*) in I. 9. 24, of adultery in I. 9. 25. 1-2 and I. 10. 28. 15-20, II. 10. 26. 18 ff, theft in I. 9. 25. 4-11, dāyavibhāga in II. 6. 14, vākpāruṣya in II. 10. 27. 14. Vas. also mentions the word dāyavibhāga (in XVII. 40) and sets out rules about it and about means of proof (XVI. 13-15), about *ṛṇādāna* (XVI. 31), about the twelve kinds of sons (XVII. 12-39). The Baud. Dh. S. (II. 2. 8) employs the word dāyavibhāga and gives several rules on that subject. Thus some at least out of the eighteen vyavahārapadas (such as vākpāruṣya, daṇḍapāruṣya, dāyabhāga, steya) were distinctly recognized centuries before the present Manusmṛti was composed. Someśvara in Mānasollāsa (II. 20. verses 1265-1273) enumerates 22 vyavahārapadas, by splitting dattasyānapākarma into two as *datta* and *dattāpahāraka*, adds svāmibhṛtyavivāda after svāmipālavivāda, counts krayavikrayānuśaya as two and dyūtasamāhvaya as two distinct topics.

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The definition of *vyavahārapada* in Yāj. II. 5 (= Śukra IV. 5. 68) viz. 'if a person informs or complains to the king' (*āvedayati ced rājñe*) conveys that vyavahārapada means and includes only those disputes that are started or brought before the Court at the instance of the parties. Manu VIII. 43 prescribes that neither the king nor his officers should start a dispute (i. e. a legal proceeding ), nor should he sit silent upon (hush up) a matter which has been brought before him by another (i. e. by a party). Gaut. XIII. 27 lays down that a party should humbly approach a judge with his complaint. Kātyāyana (27) states: 'The king³³⁰ should not, through influence or through greed of money, take upon himself the disputes of men, when they do not themselves want to contend (in a court)'. Mānasollāsa II. 20 verse 1274 and Śukra IV. 5. 69 say the same. There must have always been several matters, of which nobody might complain and which the king might have to look into *suo motu*. Manu after dealing with the 18 vyavahārapadas (in VIII. 1 to IX. 251) requires the king (in IX. 252-253) to make efforts to destroy kaṇṭakas (thorns, harmful persons) and dilates upon many aspects of his activities in this respect. Nārada relegates all matters in which the king took action *suo motu* to a separate topic, prakīrṇaka, about which he says 'under prakīrṇaka are comprised lawsuits depending on the king (i. e.

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on the king's own action) such as transgressions of the king's commandments and obedience to his injunctions, grants of towns, dissensions among the constituent elements (such as ministers) of the State, the duties and breaches there of among heretics, followers of the veda, corporations (of merchants) and groups, dispute between father and son, neglect of prescribed penances, abstraction of gifts made to worthy persons, the wrath of hermits, sinful confusion of castes and the rules regarding their maintenance and (in short) whatever (matter) has been omitted in the preceding (vyavahārapadas)—these are treated under prakīrṇaka'.³³¹ Bṛhaspati defines prakīrṇaka in the same way as Nārada. Kauṭilya deals with the vyavahārapadas in his Dharmasthīya (III) section and in the Kaṇṭakaśodhana section (IV) speaks of matters that are similarly dealt with by officers called *pradeṣṭṛs* (who correspond to coroners and police magistrates of modern times), while matters falling under the dharmasthīya section (viz. the vyavahārapadas) were disposed off by judges (called *dharmasthas*). Kaṇṭaka means in Kauṭilya as in Manu IX. 252 'harmful persons'. The chief matters that fell within the purview of the kaṇṭakaśodhana (removal or punishment of harmful persons) officers or courts were: Artisans like blacksmiths and carpenters were generally to work in guilds and receive from people materials for working them up;

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if they caused unreasonable delay in handing back finished articles, they were to receive one-fourth less than the proper wages and were to be fined twice the amount of wages; similar provisions are made for loss of wages and fines for weavers who do not increase the weight of cloth (cotton, linen, silk or woollen) woven up to the usual standard: washermen were to wash clothes on wooden planks or smooth stones, but if they washed them elsewhere, they were to pay compensation for loss caused and a fine of 6 *paṇas*; they were to be fined twelve paṇas for the sale, pledge or hiring out of other's clothes; they were also to be fined for keeping clothes with them beyond the time ordinarily required; for washing the best garments, garments of middling quality and inferior garments the wages were respectively one paṇa, ½ and ¼; trustworthy persons and experts were to decide disputes about colour and wages; similar rules apply to tailors; goldsmiths, who without informing (government officers) purchased from unclean hands (i. e. from menial servants or slaves) without changing the form of the article or after changing the form, or purchased from a thief were to be fined respectively 12, 24 or 48 paṇas; for stealing one (gold) māṣaka (one-sixteenth of a suvarṇa) from off a suvarṇa, the gold-smith was to be fined two hundred paṇas and for stealing one māṣaka out of a silver *dharaṇa* there was a fine of twelve paṇas;

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fines are provided for loss of weight (beyond the recognised standard) in the case of working up copper, lead, brass, bell-metal, tin into vessels and articles; for manufacturing a counterfeit coin, for accepting it or passing it off to another the fine was a thousand paṇas and for entering a counterfeit coin in the royal treasury the punishment was death; a physician, who undertook the medical treatment of a patient without informing (government officers) of the dangerous nature of the disease, was to be punished with the first amercement if the patient died and with the middling fine if the patient died through the carelessness of the physician and if the patient suffered some vital injury, the matter was to be dealt with as assault (daṇḍapāruṣya); musicians and actors shall stay in one place during the rainy season and shall avoid taking excessive gifts or indulging in excessive praise of one patron; for violating this rule the fine was twelve paṇas. The same rules apply to those who show dumb plays and to other mendicants, the latter receiving as many lashes as the fine imposed in similar cases on others. In IV. 2 Kauṭilya prescribes fines against merchants that use false measures, weights and balances; that sell timber, iron, jewels, ropes, clothes misrepresenting them as superior when they are inferior; that conspire to prevent the sale of merchandise; that cause adulteration of grains, oils, salt, medicines &c.;

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that raise the prices beyond those fixed by the superintendent of commerce for local commodities and for foreign produce. In IV. 3 Kaut. provides for measures against such calamities as fire, floods, pestilential diseases, famine, rats, tigers, serpents and prescribes a fine of twelve paṇas for catching or injuring cats and mongooses employed to destroy rats. In IV. 4 Kauṭ. prescribes the measures that the officer called samāhartṛ has to take to protect the subjects against those who prey upon the people secretly by employing foul means. He has to employ spies under various disguises to find out the honesty or corruption of officers in the villages, of superintendents, of judges, of magistrates and witnesses and the punishment in these cases is generally banishment. Kauṭilya IV. 5 deals with the detection of young men inclined to robbery and adultery by the employment of spies and agents *provocateurs* in the guise of ascetics and persons reputed to possess miraculous powers. The Kauṭilīya IV. 6 and 7 respectively describe the seizure of criminals on suspicion or in the very act itself and examination in cases of sudden death. Kauṭ. IV. 8 speaks of questioning in the presence of the wronged party of the witnesses of the accused, whether they are his relatives or total strangers, as regards the country, the caste, the family, the name, occupation, property, friends and residence of the accused and of the application of torture to the accused to elicit an admission of guilt.

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It is said that torture is to be applied only in the case of those whose guilt is believed to be established *prima facie* (*āptadoṣaṁ karma kārayet*), that torture is not to be employed when the accused is guilty of a minor offence, is under age, old or diseased, is under the influence of intoxicants, or is a lunatic, or is overwhelmed by hunger or thirst or fatigue due to a journey, or has eaten to excess or is suffering from indigestion or is weak, nor is it to be employed in the case of a pregnant woman or a woman who was delivered of a child within a month; and in the case of other women only half the torture prescribed for males or only the asking of questions is to be employed. Learned brāhmaṇas and ascetics (when accused) are to be subjected to espionage only. Those who violate these rules or incite others to do so and those who are guilty of causing the death of an accused by torture are to be punished with the highest amercement. Four kinds of torture were employed in the case of complaints about wrongs viz. six daṇḍas, seven whippings, two kinds of suspension, and (fourthly) water-tube (i. e. injecting salt water in the nose from a tube).³³² In this chapter Kauṭ. states that one who charges an innocent man with being a thief or who conceals a thief is to be punished like a thief and that even one who is not a thief may for fear of torture admit that he is a thief, as Māṇḍavya did. Kauṭ. in IV.

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9 prescribes that the *samāhartṛ* and *pradeṣṭṛs* should exercise control over all superintendents of the various State departments and their subordinates, that those who steal or seize valuable articles or jewels from State mines or manufactories should be simply sentenced to death, prescribes various fines and punishments for stealing or removing by force articles of different prices from the State granaries and store-houses, provides punishment for judges that threaten, browbeat, send out or unjustly silence or abuse litigants or that do not ask proper questions or ask improper questions, that cause unnecessary delay, unjustly rehear causes that have been heard or disposed of, and provides heavy punishments for releasing persons jailed or for rape on a woman in a lock-up. Kauṭ. IV. 10 prescribes alternative punishments of fines in lieu of the cutting off of fingers or mutilation of limbs for several offences such as theft or assault, abuse and defamation or showing contempt to the king by riding his horse or other conveyance or fabricating royal orders, prescribes death for selling human flesh, simple death or highest amercement for stealing images of gods or animals, for abducting human beings or for wrongfully seizing fields, houses, gold, gold coins, jewels and crops. Death with or without torture is provided for in Kauṭ. IV.

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11 for murdering a man in a quarrel (but when the wounded man dies a fortnight or a month after the quarrel, highest fine or fine of five hundred *paṇas* and the expenses of medical treatment); different kinds of punishments are provided for wounding with a weapon, impalement for causing violent death of men and women, burning alive for those who aim at securing the kingdom or force entrance into the royal harem or incite wild tribes or enemies or instigate disaffection in the capital or country or army, drowning (or solitary confinement in a dark room, acc. to another reading) for a brāhmaṇa offender of this sort, cutting of tongue for insulting or abuse of parents or a teacher or an ascetic, drowning for one destroying the dam of a tank or for a poisoner or for a woman murdering a man, tearing to death by bulls for a woman who murders her husband or child or her elders or administers poison or sets fire. Kauṭ. adds that the punishment of death with torture has been prescribed by ancient smṛti-writers, but that it is proper to order simple death in cases of offences in which no cruelty enters. Kauṭ. IV.

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12 starts by declaring that no man shall have sexual intercourse with a woman (not his wife) against her will, prescribes different punishments for forcible sexual intercourse with an immature girl or a girl that has attained maturity, of the same caste, or of a different caste, provides that for intercourse with a willing maiden the fine will be 54 paṇas for the man and 27 for the maiden, further provides that it is no offence for a man of the same caste to have intercourse with a maiden who has not been got married for three years after the appearance of menses, provides fines for deceitfulness in substituting one girl at marriage while showing another before, provides that if a woman whose husband is gone abroad commits adultery a relative or servant of the husband may keep her under restraint and that if the husband on his return forgives the woman her paramour may not be proceeded against, but if he does not condone, the nose and ears of the woman may be cut off and the paramour should be sentenced to death. Kauṭ. IV.

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13 provides punishment for brāhmaṇas eating or drinking what is forbidden to them and varying fines for administering forbidden food or drink to members of the four varṇas, provides fines for house-trespass and lurking house-trespass by night, provides punishments for witchcraft, provides burning alive in a vessel for adultery with the queen and other punishments for adultery with women of the several castes, whether guarded or unguarded, prescribes a fine of 24 paṇas for adultery with a nun.

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³³⁰ न राजा तु वशित्वेन धनलोभेन वा पुनः । स्वयं कार्याणि कुर्वीत नराणामविवादिनाम् ॥ कात्यायन q. by कुल्लूक on मनु VIII. 43, व्य. मा. p. 285 (which reads न वागमविवादिनाम् ); स्वयं नोत्पादयेत्कार्यं समर्थः पृथिवीपतिः । नावद्यात्तथोत्कोचं दत्तं कार्यार्थिना नृपः ॥ मानसोल्लास II, 20. 1274.

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³³¹ प्रकीर्णके पुनर्ज्ञेयो व्यवहारो नृपाश्रयः । राज्ञामाज्ञाप्रतीघातस्तत्कर्मकरणं तथा ॥ पुरप्रदानं संभेदः प्रकृतीनां तथैव च । पाखण्डिनैगमश्रेणीगणधर्मविपर्ययः । पितापुत्रविवादश्च प्रायश्चित्तव्यतिक्रमः । प्रतिग्रहविलोपश्च कोपश्वाश्रमिणामपि । वर्णसङ्करदोषश्च तद्वृत्तिनियमस्तथा । न दृष्टं यच्च पूर्वेषु सर्वं तत्स्यात्प्रकीर्णकम् ॥ नारद (प्रकीर्णक 1-4) quoted by the मिता. on या. II. 295. The स्मृतिच. (II. p. 331) reads पुरप्रमाणं and explains पौरचरितलेख्यप्रमाणम्. तत्र बृहस्पतिः । एष वादिकृतः प्रोक्तो व्यवहारः समासतः । नृपाश्रयं प्रवक्ष्यामि व्यवहारं प्रकीर्णकम् ॥ स्मृतिच० II. p. 331. (*Continued from the last page*) In an interesting paper contributed to the Sir Denison Ross volume of papers pp. 234-240 Dr. V. Raghavan describes a work called 'Vaiśyavaṁśasudhākara' composed by Kolācala Mallinātha, the renowned commentator of the five classical Sanskrit Kāvyas. This work is the report or decision given by a commission presided over by Mallinātha appointed to settle a dispute (which in these days might be called a caste question not cognisable by civil courts) that arose in the times of Devarāya II. of Vidyānagara (1422-1466 A. D.). Vaiśyas were given a license to trade in the 24 cities and 108 shrines of the realm; certain subcastes like the Komaṭis claimed to be vaiśyas and this privilege also. Mallinātha decides after a searching examination of authorities that the words vaiśya, vaṇik, nāgara, ūruja, tṛtīyajātīya are synonyms, that Komaṭis, who were styled vijātis by their rivals, were vaiśyas and entitled to all the privileges of vaiśyas. This decision would come under either **पाषण्ड ... विपर्ययः** or **तद्गृहीतिनियमः**.

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³³² The exact meaning of the four kinds of torture is not clear. Prof. V. R. Dikshitar in 'Hindu Administrative Institutions' pp. 237-247 tries very hard to establish that Kauṭ. recommends no torture in any case, that '*vākyānuyoga*' means 'pronouncing of guilt by the jury' and *karmānuyoga* means 'judgment of the Chief Justice'. Though the learned Professor's attempt to exculpate Kauṭilya may be due to laudable motives, the words of Kauṭilya are too clear to admit of any other interpretation than the one given above. If one dispassionately considers the fact that no *karma* was allowed to be employed in the case of the weak, the diseased, old men &c., that in the case of women '*ardhakarma*' alone was allowed, that a heavy fine was imposed for causing death by *karma* (*karmaṇā vyāpādanena*). *(Continued from the last page)* that Māṇḍavya, though really not a thief, declared that he was so through the fear of the torments of *karma* (*karmakleśabhayāt*), that in the four karmas we find suspension and water-tube and that immediately after the words '*karma kārayet*' we get the rule that in all crimes the brāhmaṇa was not to be subjected to bodily pain, it will have to be admitted that '*karma*' in this chapter of the Arthaśāstra means 'torture'. One fails to see what '*ardhakarma*' in the case of women will mean if '*karma*' signifies only the judgment of the chief justice or why Māṇḍavya should have confessed theft through fear of '*karmakleśa*'. And one need not feel apologetic if Kauṭilya recommends torture in certain well-defined cases. Torture was an essential part in the Roman Criminal Procedure and Augustus had issued an edict about it. Vide Stephens' 'History of English Criminal Law' vol. I. pp. 47-49. Torture by the police and third-degree methods are not unknown in the 20th century in the West (even apart from the latest German methods) or in India, though they are not expressly mentioned in any text-book or Act as allowable. Vide Harry E. Barnes' 'Story of Punishment' pp. 10-15 for various kinds of tortures employed in the West for several centuries and third-degree methods (pp. 15-24), which he asserts are even now in almost universal use by the Police Department in the U. S. A. The story of Māṇḍavya who though not a thief was held to be a thief, because he, owing to his vow of silence, did not reply when questioned and near whom was found the booty stolen and who was impaled, is found in Ādi. 63. 92-93 (cr. ed. chap. 57), Ādi. 107-108 (cr. ed. chap. 101), Anuśāsana 18. 46-50 and in Nār. (I. 42) and Bṛ. quoted by Aparārka (p. 599). शू‍ले प्रोतः पुराणर्षिश्चोरश्चोरशङ्कया । अणीमाण्डव्य इत्येवं विख्यातः सुमहायशाः ॥ आदि 63. 92-93. Kauṭ. IV. 8 appears to have had a different version of the story before him. The Mārkaṇḍeyapurāṇa chap. 16 has the story of Aṇimāṇḍavya. The story of Māṇḍavya was a leading case, it appears, in criminal law. The Mṛcchakaṭika (Act IX. 36) appears to refer to torture.

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The above is a meagre summary of Kauṭilya's section on kaṇṭakaśodhana. Kauṭilya is encyclopaedic on this subject as on several others. The number of offences dealt with by him is very large and his treatment in some respects compares favourably with such modern criminal codes as the Indian Penal Code. Many of the provisions contained in Kauṭ. IV are found in Yāj. (II. 273-304), in Nārada (in prakīrṇaka and elsewhere) and also in Manu (e. g. VIII. 365-368 about rape or adultery, VIII. 396-97 about washermen and weavers, IX. 225-226 about musicians and dancers, IX. 231-232, IX. 261-267). Why Kauṭ. treats of several offences under kaṇṭakaśodhana and not under the dharmasthīya section, it is somewhat difficult to say. It is probable that he included under dharmasthīya only those complaints or actions that were fought out between the parties, even though many of the wrongs complained of under vākpāruṣya, daṇḍapāruṣya, saṅgrahaṇa and steya were criminal and the same as those treated of in the section on kaṇṭakaśodhana. In wrongs dealt with in the kaṇṭakaśodhana section it was the king or king's officers who themselves brought up the offenders for punishment and the offences were viewed not as mere private matters, but as matters in which the State was concerned for the eradication of crime in general. Kauṭilya in III. 20 speaks of *prakīrṇaka* but therein he seems to include some miscellaneous matters like non-return of borrowed articles or deposits (at the proper time and place), evading payment of ferry tax under the pretence of being a brāhmaṇa, connection with a public woman kept by another, misappropriating revenue collected as agent for a householder, a cāṇḍāla's touching an Ārya woman, inviting for dinner in honour of Gods and Manes Buddhist or Ājīvaka or Śūdra mendicants, abandonment of parents, child, wife or husband, brother or sister, teacher or pupil (when not guilty of a grave sin), wrongful confinement of a person &c. Kauṭilya does not apparently include under prakīrṇaka all matters in which the king acts *suo motu* as Nār., Bṛ. and Kāt. do but includes these latter under kaṇṭakaśodhana. He, however, states here and there (IV. 1 and 13) that the matters dealt with under kaṇṭakaśodhana are quite analogous to those under such titles as daṇḍapāruṣya treated of under the dharmasthīya section. For example, in IV. 1. he says that if a physician through negligence causes loss of a vital part to a patient then the matter may be treated as daṇḍapāruṣya.³³³ So Kauṭilya probably represents a much earlier stage of judicial administration than Nār. or Bṛ., who included under prakīrṇaka all matters in which the king acted of his own motion (i. e. all that falls under kaṇṭakaśodhana in Kauṭ.).

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³³³ भिषजः ...... कर्मापराधेन विपत्तौ मध्यमः । मर्मवधवैगुण्यकरणे दण्डपारुष्यं विद्यात् । अर्थशास्त्र IV. 1 ; दुर्बलं वेश्म शकटमनुत्सर्गधूर्यस्तम्भासनमपाश्रयमप्रतिच्छन्नं श्वभ्रं कूपं कूटावपातं वा कृत्वा हिंसायां दण्डपारुष्यं विद्यात् । अर्थशास्त्र IV. 13.

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The enumeration of vyavahārapadas is very ancient and authoritative, but there is hardly any scientific principle of classification underlying them. A writer called Nibandhanakāra quoted in the Sarasvatīvilāsa³³⁴ (p. 51) holds that in all the vyavahārapadas from *ṛṇādāna* to *dāyavibhāga* the relief claimed is something to be given or rendered (*deya*) by one party to the other, while in vākpāruṣya, daṇḍapāruṣya, sāhasa, gambling and betting the principal relief is in the form of daṇḍa (punishment). Here there is a glimmering of the distinction between civil and criminal litigation. Two deep-seated principles in the administration of law and justice everywhere are 'fulfil your promises' and 'cause injury (hiṁsā) to no one'. It is therefore that we find Bṛhaspati stating that lawsuits are of two kinds according as they originate in (demands about) wealth or in injuries. Yāj. II. 23 speaks of *arthavivāda* (civil dispute) and so made a distinction between civil and criminal disputes. Lawsuits³³⁵ originating in wealth are divided into fourteen sorts and those originating in injuries are of four sorts These last are vākpāruṣya (defamation and abuse), daṇḍapāruṣya (assault and battery), sāhasa (murder and other forms of violence) and strīsaṅgraha (adultery). Here there is a clear distinction made between civil disputes (*arthamūla* or *dhanamūla*) and criminal ones (*hiṁsā-mūla*). Kāṭ. also says that disputes have their source in two viz. not rendering what should be given and injury (hiṁsā). Though in this way a distinction was made between civil and criminal disputes among the 18 titles of law, it appears that the set of rules and the procedure in both were the same (except as to the time allowed for reply, as to the qualifications of witnesses and as to proxies), the same courts tried both kinds of disputes and not as in modern times (when civil disputes are tried in one class of courts and criminal complaints in another and when the procedure also in both differs a great deal). There were not two sets of courts in ancient India as there were in England before the fusion of Law and Equity, but all courts in ancient and medieval India were required to administer the law of the texts tempered by common sense and reason as laid down by Bṛ.: 'a decision should not be given by merely relying on the text of the śāstra; when consideration of a matter is divorced from reason and common sense loss of *dharma* results' (q. by Aparārka p. 599).

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³³⁴ तथा च गौतमसूत्रम् । द्विस्यानतो द्विगतिरिति । व्यवहार इत्यनुषज्यते । तत्र निबन्धनकारेणोक्तम्-ऋणादानादिदायविभागान्तानां देयनिबन्धनत्वं साहसादिपञ्चकस्य दण्डनिबन्धनत्वमिति द्विस्यानतेत्यर्थ इति। स. वि. p. 51.

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³³⁵ द्विपदो व्यवहारः स्याद्धनहिंसासमुद्भवः । द्विसप्तकोर्थमूलस्तु हिंसामूलश्चतुर्विधः ॥ ... एवमर्थसमुत्थानि पदानि तु चतुर्दश । पुनरेव प्रभिन्नानि क्रियाभेदादनेकधा । पारुष्ये द्वे साहसं च परस्त्रीसंग्रहस्तथा । हिंसोद्भवपदान्येवं चत्वार्याह बृहस्पतिः ॥ स्मृतिच० II. p. 9, व्य. मा. p. 277 (for first verse), परा. मा. III. pp. 20-21 ; साध्यं वादस्य मूलं स्याद्वादिना यन्निवेदितम् । देयामदानं हिंसा चेत्युत्थानद्वयमुच्यते ॥ कात्यायन (30) quoted in स्मृतिच० II p. 13.

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Nār. (I. 8-29), Bṛ., Kāṭ., the Agnipurāṇa (253. 1-12 which reproduce almost *verbatim* the verses of Nār.) and others predicate several things about vyavahāra, such as that it is *dviphala* (has two results) and so on. All these are brought together here below for convenience. Vyavahāra is:—

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*Catuṣpād*—having four feet, viz. dharma,³³⁶ vyavahāra, caritra, rājaśāsana, acc. to Nār. (I. 10); while acc. to Yāj. II. 8 and Bṛ. they are the plaint, the reply, the proof (*kriyā*) and decision (*nirṇaya*) or acc. to Kāt. 31 (q. by Aparārka p. 616) plaint, reply, *pratyākalita*³³⁷ and *kriyā*.

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³³⁶ Among the verses at the end of IV. 1 of the Arthaśāstra the following two verses occur: धर्मश्च व्यवहारश्च चरित्रं राजशासनम्। विवादार्थश्चतुष्पादः पश्चिमः पूर्वबाधकः। तत्र सत्ये स्थितो धर्मो व्यवहारस्तु साक्षिषु। चरित्रं संग्रहे पुंसां राजाज्ञाज्ञा तु शासनम् ॥. These two occur in Nār. (I. 10-11) and Hārīta (q. in S. V. p. 58) with variations, viz. both read चतुष्पाद् व्यवहारोयमुत्तरः पूर्व० and चरित्रं पुस्तकरणे. Par. M. III. p. 10 reads चरित्रं तु स्वीकरणे. Lengthy explanations of these verses are offered in Aparārka (p. 597), Smṛticandrikā (II. pp. 10-11), Vyavahāraprakāśa (pp. 7, 88-89) and other digests. It has to be noted that the four (dharma &c.) mentioned in these verses are the means of arriving at a decision in a law-suit, as Bṛ. says: धर्मेण व्यवहारेण चरित्रेण नृपाज्ञया। चतुष्प्रकारोऽभिहितः संदिग्धेष्वर्थे विनिर्णयः ॥ (in स्मृतिम० II. p. 10, परा. मा. III. p. 16, व्य. प्र. p. 6); व्यवहारोपि चरित्रेण बाध्यते यथा। साक्षिभिः साधितेप्याभीरस्त्रियाः पुरुषान्तरोपभोगे तद्दण्डने च व्यवहारतः प्राप्तेपि राजकुलाधिगतलिखितान्निवर्तते । पूर्वं हि तत्र लिखितम्-आभीरस्त्रीणां व्यभिचारेपि सति दण्डो न ग्राह्य इति। अपरार्क p. 597 (on या. II. 17.)

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³³⁷ Pratyākalita means, acc. to Aparārka p. 616, the deliberation of the judge and sabhyas as to where the burden of proof (*onus probandi*) lies and as to the method of proof. Acc. to the Mit. on Yāj. II. 8, pratyākalita in this sense is not a vyavahārapāda, since it is not directly related to the litigants. Acc. to Nār. II. 21 pratyākalita seems to mean an addition to the plaint or to the reply (i. e. a supplementary written statement). वादिभ्यां लिखिताच्छेषं यत्पुनर्वादिना स्मृतम् । तत्प्रत्याकलितं नाम स्वपादे तस्य लिख्यते ॥.

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Dharma and the other three are really the four feet of nirṇaya (final decision), which is one of the four stages of a law-suit (vyavahāra) and so only in a secondary or far-fetched sense they are the four pādas of vyavahāra. Each of these four is said to be of two kinds. Vide Sm. C. II. pp. 10–11, Par. M. III. pp. 198–199, V. P. pp. 87–88 where the verses of Bṛ. are set out and fully explained. A decision is said to be arrived at according to dharma when the wrong-doer admits his guilt or wrong-doing and the real owner secures his wealth or the relief due to him without having to undergo the trouble of a protracted trial by means of witnesses, documents &c. Similarly a decision to be arrived at by ordeals is said to be one by dharma. Dharma and satya are often identified (vide note 125 above) and here the wrong-doer tells the truth and the decision is therefore said to be by *dharma*. When a litigation is fought out in Court by citing witnesses, the decision is said to be by vyavahāra. 'Witnesses' are mentioned only by way of illustration (and imply documents, possession and other means of proof). When a defendant is guilty of not giving a straight reply or when his reply is tainted with faults and so is unacceptable and a decision is given against him on that ground alone it is still a decision by vyavahāra. *Caritra* means 'the usages of a country, village or family' (*deśasthitiḥ pūrvakṛtā caritraṁ samudāhṛtam*—Vyāsa q. in Sm. C. II. p. 11 and Vy. Nir. p. 138).

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This seems to be the sense of 'caritra' in 'phalakavāre charitratoti' occurring in Nasik Inscription No. 12 in E. I. vol. VIII. p. 82. In prakīrṇaka 24 Nār. seems to give the same sense 'sthityarthaṁ pṛthivīpālais-caritraviṣayāḥ kṛtāḥ'. *Caritra* also means 'anumāna' (possession and presumptions). 'Anumānena nirṇītam caritramiti kathyate'-says Bṛ. quoted in Vy. Nirṇaya p. 139 and Par. M. III. p. 198. Usages are the means of decision in certain cases apart from the question whether they are supported by the smṛtis or not. ‘Caritram pustakaraṇe’ means that such usages are valid means of decision if they have been written down or recorded by the king, while ‘caritram tu svīkaraṇe’ (the reading in Par. M.) means ‘usages become the rule of decision when they are accepted as valid by the people and by the courts’. When a king issues in a matter of dispute an order which is not opposed to smṛtis or local usages and which is thought out as the most appropriate one by the king's intellect or which is issued to decide a matter when the authorities on each of two sides are equally strong, it is a decision by royal command. Bṛ. (in Par. M. III. p. 148) and Kāt. (verses 35–38 q. in Sm. C. II. p. 10, Par. M. III. pp. 16–17, V. P. p. 7) explain the above four. Bṛhaspati gives two meanings of caritra: (1) what is decided by inference; (2) the usages of a country.

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When it is said that each later one of the four stultifies each preceding one, the idea is not that in all cases it is so, but that it is so only in some cases. Vide Kāt. (43 q. by V. P. p. 90) which makes this clear. Some examples may be given. If one litigant says that he would prove his case by an ordeal, while the other says that he will prove his contention by human means (documents or witnesses &c.), then the trial by ordeal is not to be resorted to but the hearing of the case is to proceed in the ordinary way. Vide Kāt. 218 (q. by Mit. on Yāj. II. 22) for this rule. Here dharma is set aside in favour of vyavahāra. Another example is given in the Par. M. III. p. 18. A person belonging to one of the four varṇas commits a seditious act (*rājadroha*) and through timidity admits his guilt (this is *satya*), but the witnesses (relying on Manu X. 130 that where the punishment would be death, a witness may tell a lie) deny that he was guilty of the act and he is let off. Here dharma is set aside in favour of vyavahāra (trial based on the depositions of witnesses). Vide Sm. C. (II. p. 11) for another similar example. In the country of Kerala visiting a prostitute was not condemned by custom. So even though it is established by witnesses that a person in Kerala did so, the local king may not punish him with a fine. Or suppose a person is charged with the offence of adultery with the wife of an *ābhīra* and this fact is established by witnesses.

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