History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.26

v4.c63.26

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).