History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.386
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.386
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*Divya* is defined as 'that which decides a matter (in dispute) not determined by human means of proof' (V. Mayūkha) or 'that which decides what cannot be or is not to be decided by human means of proof' (Divyatattva⁵⁷⁰ p. 574). Medhātithi on Manu VIII. 116 discusses the question how ordeals can be relied upon for the discovery of truth. The objection is raised that fire and water are natural forces that act in a uniform way and are not intelligent beings which may change their minds by an appeal to them. Therefore, the objector says, ordeals and oaths are like magic and are only meant to frighten the parties into telling the truth. It is further objected that thieves may (by some trick) not be burnt in the fire ordeal and good men are seen to suffer burns. The reply is: the usefulness of ordeals cannot be negatived by these examples of failures, as they are not frequent and as even direct perception and inference sometimes lead to uncertain results. No one, however, says that these latter should not be relied upon. Just as one relies on witnesses in deciding a matter (who may for aught one knows be telling lies), so reliance can be placed on ordeals. Where there is failure in case of ordeals, it must be held to be due to the results of the performer's actions in past lives. The general rule as stated by Yāj. II. 22, Nār. II. 29, IV. 239, Bṛhaspati⁵⁷¹, Kāt.
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(217) and Pitāmaha is that ordeals were to be resorted to only if no human evidence (witnesses, documents, possession) or circumstantial evidence was available. Kāt. (218-219) prescribes that⁵⁷² if one party relies on human means of proof and the other on divine proof, the king (or judge) is to accept human means and not divine and that if human means of proof reach (i. e. are able to establish) only a part of the allegations (in the plaint), then human means should be accepted and no divine modes of proof, even though they may be complete (i.e. completely cover all allegations). When Nār. II. 30 (= IV. 241) states that divine means of proof are to be resorted to when a transaction takes place in a forest, in a lonely place, at night, inside a house, in cases of *sāhasa* and when a deposit is denied, or when Kāt. (230) prescribes that trial by ordeals is to be resorted to in the case of persons accused of committing *sāhasa* in secret (i.e. by wearing masks &c.),⁵⁷³ those words only apply where it is impossible to have human evidence. Kāt. (229) states an exception to this viz. when the dispute⁵⁷⁴ investigated is about *sāhasa* or about assault or abuse and defamation and in causes that spring from the use of force there is an option that witnesses or divine proof may be resorted to. Nār. IV. 242 states that divine proof could be resorted to when the chastity of women was in question, in theft and *sāhasa* and in all cases of the denial of monetary liability.
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Sītā's ordeal of fire at once comes to mind as an illustration of Nārada's rule. Bṛhaspati⁵⁷⁵ and Pitāmaha say that in disputes about immoveable property divine proof should be avoided, which does not forbid *divya* altogether, but only where the evidence of neighbours or of a document is available and that in the latter case even if the defendant offers to pay a fine if he fails by the divine proof, *divya* is not to be resorted to. The ordinary rule was that ordeals were to be administered to the defendant⁵⁷⁶ (Kāt. 411 = Viṣṇu Dh. S. IX. 21). But Yāj. II. 96 gives an option that any one of the two litigants may by mutual agreement undergo an ordeal and the other should agree to pay on defeat a fine or undergo physical punishment. This means that human proof is adduced to prove a positive proposition, that divine proof may be resorted to prove a negative proposition as well (e. g. a defendant denying the claim for a debt may prove by *divya* that he did not borrow a loan). Making an offer to pay a fine or undergo corporal punishment is said to be being *śīrṣakastha*⁵⁷⁷ or *śirastha* (in Yāj. 95, Viṣṇu Dh. S. IX. 20, 22, Pitāmaha, Nār. IV. 257, Kāt. 412-413). Yāj. II. 95 prescribes that the ordeals of balance, fire, poison and water were to be prescribed in disputes of great value and not elsewhere and in II.
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99 he says that all claims above 1000 paṇas (of copper) are to be regarded as of great value, but in charges of treason and of the committing of any one of the five grave sins (*mahāpātakas*) any one of these four ordeals may be resorted to without regard to value and without any offer to pay fine on defeat. So also these four ordeals were to be offered to the defendant where the plaintiff offered to pay a fine on defeat. The ordeal of *kośa* was allowed in all claims whether of high value or low value or whether the plaintiff offered to pay a fine on defeat or not.