History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.33
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.33
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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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Yet the man charged may show that among the ābhīras there is a usage (written down in the census records of the king) that adultery with an ābhīra woman is not punishable. In such cases caritra (usage) annuls the (ordinary) vyavahāra. But suppose that in such cases the king, in order to improve the morals of a section of his subjects, issues a proclamation that from the date of the proclamation one who is guilty of adultery with an ābhīra woman will be punished, then in that case usage will be set aside by royal command, which will then be the rule of decision. Similarly where there are no witnesses nor documents nor possession and no room for ordeal and there are no texts and local usages it is the king who has to decide as best as he can. Vide Pitāmaha q. in Sm. C. (II. p. 28). Kāt. (verses 39-43 q. in V. P. p. 89) describes how and when each later one sets aside each prior one.