History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.361

v4.c63.361

Nār. IV. 289 provides that when even circumstantial evidence and presumptions therefrom do not enable the court to arrive at a decision, the judge should press the litigant with śapathas (oaths and ordeals) according to the place, time and strength of the litigant, such as fire, water, his spiritual merit and others. Manu VIII. 109 also says that when there are no witnesses the truth would have to be found out by *śapathas*. Divine proof is called *daivikīkriyā* or *samayakriyā* (Viṣṇu Dh. S. IX. 1). Some writers make a distinction between *śapathas* (special oaths) and ordeals (*divyas*), others (like Manu VIII. 109-114, Nār. IV. 239) do not. For example, the Vivādacandra quotes Nār. IV. 247 'when there is no witness in a dispute between litigants, there the judge should decide by means of ordeals⁵⁵¹ and various *śapathas*'. Acc. to the Mit. (on Yāj. II. 96) and S. V. (p. 106) both special oaths and ordeals are divine proof (*divya pramāṇa*), but in disputes of small value *śapathas* (oaths) were generally employed, while ordeals were resorted to only in serious disputes or crimes. The Mit. (on Yāj. II. 96), the V. May. p. 46 and V. P. (p. 170) state that ordeals are those that generally end in immediate decision of the dispute, while *śapathas* take time for decision (because after the oath the king has to wait for a week or more to see whether a calamity befalls the person taking the special oath). Vyāsa quoted by Sm. C. II. p. 96 employs the word *śapathas* for both special oaths (taken as to one's 'satya') and ordeals like balance. Śaṅkha-Likhita state that divine proofs are the balance, eating poison, entering fire, holding a piece of (hot) iron, offering one's merit acquired by sacrifices and charity and the king should make him undergo other śapathas⁵⁵². Bṛhaspati says that where documents or witnesses do not lead to a certain decision or where inference from circumstantial evidence also is confusing, there the matter is to be decided by divine proof⁵⁵³.