History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.386.3

v4.c63.386.3

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.