History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.285

v4.c63.285

The above is a formidable list of incompetent witnesses; therefore, most Smṛtis such as Gaut. XIII. 9, Kauṭ. III. 11, Manu VIII. 72, Yāj. II. 72, Nār. IV. 188-189, Viṣṇu Dh. S. III. 6, Uśanas (q. in Sm. C. II. p. 79), Kāt. 365-366 (q. in Sm. C. II. p. 79) expressly point out that strict examination of the character of witnesses should be entered upon in disputes about debts and the like which are of a fixed nature (of a civil nature), but that in complaints about all kinds of *sāhasa* (heinous crime), in robbery, adultery or the two kinds of *pāruṣya* (viz. defamation and assault) there should be no (strict) inquiry into the character of witnesses (that is, all can be witnesses in such cases) and that even those like slaves and fault-finders who have been enumerated among incompetent witnesses can become witnesses in grave matters⁴⁹⁶. The idea is that in such cases the witnesses need not be strictly examined as to their possessing the good qualities ordinarily required in witnesses. But this does not authorize the examination of such persons as lunatics or idiots as witnesses, because they have not the power to understand things. Manu VIII. 77 emphatically states that even a single male, if he is free from greed, may be (sufficient as) a witness, but not women of good character, even though they be many, since the feminine intellect is apt to be unsteady. But even Manu had to concede (VIII. 70) that a woman or a minor or a very old person or a pupil, relative, slave or a hired servant may be a (competent) witness, if it is impossible to find another witness (in matters that occurred inside a house or in a forest or in crimes where life is lost). Kāt. 367 (q. by Aparārka p. 671) says the same thing. Uśanas⁴⁹⁷ (quoted in the Sm. C. II. p. 79, V. P. p. 120) provides that even a slave, a blind man, a deaf person, a leper, a woman, a minor, a very old man may be (competent) witnesses in *sāhasa*, provided they are not interested in the matter of dispute (or are not related or partial to the parties). Nār. (IV. 190–191) gives it as his view that even when there is to be no strict inquiry into the character of witnesses in *sāhasa*, still a minor, a woman, a single person, one who forges deeds (or who is a cheat), a relative and an enemy cannot be witnesses in *sāhasa*, since a child through ignorance, a woman from her habit of untruthfulness, a forger (or cheat) because he is accustomed to doing evil deeds, a relative from affection and an enemy from the idea of taking revenge may speak falsely. There was no total disqualification of women as witnesses, since Manu quoted above allows them to be witnesses in disputes between women and in cases where it is not possible to have other witnesses. Medhātithi on Manu VIII. 68 holds that women are disqualified as witnesses only where the plaintiff and defendant are both males but that where there is a litigation between a man and a woman or between women alone, a woman may be a competent witness. Ancient Hindu Law is not singular in its partial rejection of the testimony of women. Vide Best on Evidence (12th ed. of 1922) pp. 53-56 where it is shown how ancient Roman Law and the Medieval laws of several countries of Europe more or less excluded the testimony of women, how some States in the U.S.A. excluded the testimony of negroes and persons of coloured blood. By the Canon Law more credit was given to male than female witnesses (Taylor on Evidence, ed. of 1848 p. 655, note d).