History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.33.3

v4.c63.33.3

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.