History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.137

v4.c63.137

Very elaborate rules are laid down about the summoning of the defendant or accused by Nār. (I. 52-54), Bṛ, Kāt. (96-100), Śukra (IV. 5-102-106) and others. A few of the rules are set out below. The first person to be summoned is the one against whom a complaint based on suspicion or truth is made by the plaintiff or complainant. But other persons may be called as defendants³⁸⁹ either when the person proceeded against by the plaintiff puts forward another as liable to plaintiff's claim or makes another liable along with himself or when another person is accepted by the plaintiff (on behalf of another who is a minor &c.) or (acc. to the Madanaratna) another person himself comes forward (as defendant). The king should not require the personal appearance of the following persons: the diseased, minors, very old (beyond 70), one in a calamity, one engaged in some religious rite, one who would suffer irreparable loss by coming, one in misfortune (such as the death or disappearance of a dear relative), one engaged in the king's business or in a (religious) festival, one intoxicated, a lunatic, one distressed, a servant, a woman³⁹⁰ who is young and whose family is in straitened circumstances or who is of good family or who is recently delivered, a maiden who is of a higher caste than that of the complainant. Nār. (I. 53) prescribes that cowherds when it is the season for taking cows for grazing, agriculturists in the sowing season, artisans actually engaged in work and soldiers engaged390a in war should not be summoned to appear in person, while so engaged. In these cases some one on their behalf should be summoned as a representative. But it is provided that even these persons may be summoned with proper safeguards in important cases or grave charges, such as the killing of human beings, theft, rape, eating forbidden food, counterfeiting coins, high treason &c. But women who by their earnings support their families, unchaste women, prostitutes, women without family and women excommunicated for grave sins may be summoned to appear personally³⁹¹. A person who is summoned and is able to appear but does not appear in person was to be fined according to the value or importance of the subject matter of dispute e. g. in slight causes fifty (copper) paṇas, two hundred at least in the cases of middling value and 500 paṇas at least in heavy causes (vide Kāt. 100-101 quoted by Sm. C. II. p 34, Aparārka p. 607.) After taking the fine and waiting for 30 days or a month and a half the king may give a judgment in favour of the plaintiff, due to defendant's default. But if the defendant does come after that time, the suit may be restored and proceeded with.³⁹² But when there is an invasion by an enemy or a famine or an epidemic or disease the king should not impose a fine, but send a second summons. In the case of those who are exempted from personal appearance (as above) their relatives (son, father &c.) or some other person appointed by them (such as a pupil, servant &c.) or one who can be recognised as their agent may be allowed to appear.392a But no representative was allowed in serious charges cited above (vide Kāt. 93–95 q. by Aparārka p. 639, Sm. C. II. p. 34). If a father, brother, a friend, or a relative appears before the court for the real litigant, the law-suit may be proceeded with (Pitāmaha). Whoever carries on anything through another by appointing him to that task should be understood to have done it himself and the business transacted by such a representative or agent cannot be annulled. If a person who is not a brother nor father nor son nor appointed to represent another prosecutes a lawsuit for another, he is liable to be fined³⁹³. As the king was supposed to be the guardian of a minor's wealth, it appears from this that a king could have appointed a guardian for the suit when a minor was concerned. The above provisions show that maintenance and champerty were not encouraged by ancient Hindu lawyers.