History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.195.2

v4.c63.195.2

54), and others say that means of proof are two-fold, human and divine, and that documents, witnesses and possession are the human means of proof (Vas. 16. 10 also), while the ordeals of balance and others are divine means. Yāj. II. 22, Nār. II. 29, Kāt. 217 expressly state that ordeals are to be resorted to only when none of the human means are possible or available. If one party relies on human means alone and the other offers divine means, the king (or judge) has to accept human means and not divine; in disputes among men, if there be human means of proof though reaching (or covering) only a portion (of the allegations in the plaint) then human means should be accepted and not divine ones even though the latter may cover the whole ground (Kāt. 218–219 q. by Mit. on Yāj. II. 22). This latter rule is based on the proposition laid down in Yāj. II. 20 and Viṣṇudharmasūtra VI. 22 that when a party totally denies a claim and the opponent establishes by evidence a substantial portion of it, the judge may pass a decree against the denying party for the whole of the claim. This is practically the same as the maxim ‘omnia praesumuntur contra spoliatorem’. ⁴³¹ Therefore the general rule was that the divine mode of proof was to be resorted to only in the absence of any human means of proof. Kāt. 229 (q. by Mit. on Yāj. II. 22, Aparārka p. 629) allows witnesses or ordeals when the dispute is started with reference to *sāhasa*, assault or abuse and causes that spring from force and Kāt.