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Administrative System of the Marathas c25: Chapter VII. Judicial Institutions

Administrative System of the Marathas c25

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Contents

Chapter VII. Judicial Institutions

1. Judicial officers

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Perhaps the influence of the old Hindu lawgivers was most in evidence in the judicial system of the Marathas. The criminal cases were tried by the Patil, an appeal lay from him to the Kamavisdar or the District officer, and the highest judicial authority was the king himself, who was generally represented by the chief Nyayadhish. The Nyayadhish was invariably a Brahman and this naturally reminds one of Manu's injunction, "but if the king does not personally investigate the suits then let him appoint a learned Brahman to try them."¹ We find in Shivaji and pre-Shivaji documents mention of Hazir Majalasis as final courts of trial consisting of learned Brahman lawyers and civil and military officers of the state. We read also of Sabha Naiks or presidents of the courts and Mahaprashnikas or chief examiners. It appears from the Shukranitisara that Sabha-Naiks or Adhyakshas and Mahaprashnikas were not unknown when that work was compiled.²

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¹ S. B. E., Vol. XXV, p. 254.

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² S. B. H., pp. 186 & 189.

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Shukra tells us that the Pradvivaka is so called because he asks questions, and from the old Marathi documents it appears that the Mahaprashnika also used to do exactly the same thing. So much for the highest tribunal, the judge-president and the chief examiner.

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For the judicial authority of the village and district officers also, the Maratha system had the sanction of the old Hindu works. For we read in the Vishnu Smriti "If any offence has been committed in a village, let the lord of that village suppress the evil and (give redress to those that have been wronged). If he is unable to do so, let him announce it to the lord of ten villages; if he too is unable, let him announce it to the lord of a hundred villages; if he too is unable, let him announce it to the lord of the whole district." The lord of the whole district must eradicate the evil to the best of his power." The same procedure is recommended by the sage of the Mahabharata. The question of civil procedure and evidence shall be discussed later, but it will not be out of place here to examine the antiquity of the punishments inflicted on convicted criminals.

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³ It may be incidentally noted here that the word used in the original Sanskrit text is 'Desha' which is synonimous with Marathi Prant.

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⁴ S. B. E., Vol. VII, p. 15.

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⁵ Shanti Parva, Ch. 87.

2. Mutilation

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Capital punishment was very seldom inflicted and mutilation was almost unknown in the earlier days of the Maratha empire. This punishment however became common under Nana Fadnavis. Among the papers of the second Madhava Rao have been preserved long lists of convicts condemned to lose their hands and feet. One of these lists enumerates the following sentences for theft:

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| Capital punishment | ... | 20 men |
| Right hand and left leg to be cut off | ... | 13 men |
| Right hand only to be cut off | ... | 18 men |
| Right hand and one ear to be cut off | ... | 4 men |
| Right hand and right leg to be cut off | ... | 1 man |
| One ear to be cut off | ... | 1 man |

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And one man was to be first paraded ludicrously dressed and then nailed to death. The same punishment was inflicted for causing grievous hurt. The Maratha government did not spare the relatives of thieves who were frequently thrown into prison. And convicts were asked to perform a Prayashchitta or religious penance over and above the corporal punishment they had already undergone.

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Mutilation and execution are mentioned by Shukracharya among "various species of methods of punishment,"⁴ but they were in use in still older times. We read in the Manu Samhita for instance, "If out of arrogance he spits (on a superior), the king shall cause both his lips to be cut off. If he lays hold of the hair (of a superior) let the king unhesitatingly cut off his hands."⁷ The offences mentioned above were considered as assault, but mutilation has been recommended as an appropriate punishment for theft also by father Manu. "For stealing more than fifty palas it is enacted that the hands of the offender shall be cut off; but in other cases, let him inflict a fine of seven times the value. For stealing men of noble family and especially women and the most precious gems (the offender) deserves corporal (or capital) punishment. For stealing large animals, weapons, or medicines, let the king fix a punishment, after considering the time and the purpose (for which they were destined). For selling cows belonging to Brahmans, for piercing the nostrils of a barren cow and for stealing other cattle belonging to a Brahman the offender shall forthwith lose half his feet."⁸ And finally the lawgiver lays down as a general principle: "with whatever limb a thief in any way commits (an offence) against men, even of that the king shall deprive him in order to prevent (a repetition of the crime."⁹ Nor is Manu by any means the only legislator in favour of this horrible punishment. Vishnu also recommends the same punishment for assault and theft. According to him "with whatever limb an inferior insults or hurts his superior in caste, of that limb the king shall cause him to be deprived."¹⁰ "He who has stolen a cow, a horse, or a camel, or an elephant, shall have one hand or one foot cut off. A stealer of gold, silver or clothes at a value of more than fifty Mashas shall lose both hands."¹¹ Mutilation as a form of punishment is mentioned in the Upaguptavadana and the Hasti-avadana of Bhodisattvavadanakalpata.

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⁴ S. B. H., p. 130.

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⁷ S. B. E. Vol. XXV, pp. 303 & 304

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⁸ S. B. E., Vol. XXV, pp. 310 & 311.

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⁹ S. B. E., Vol. XXV, p. 312.

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¹⁰ S. B. E., Vol. VII, p. 27.

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¹¹ S. B. E., Vol. VII, pp. 31 & 32.

3. Punishment of the offender's relatives

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If mutilation is an old form of punishment, the practice of arresting and imprisoning the relatives of thieves is no less old. Kautilya says, "Sons or wives of murderers and thieves shall, if they are found not in concert, be acquitted; but they shall be seized if found to have been in concert."¹² It is very difficult if not absolutely impossible, for sons and wives of thieves, to exculpate themselves from the charge of connivance with their fathers and husbands, as the presumption is always against them. The only result of this rule was that in Maratha days the wives and sons of thieves and other offenders were arrested and imprisoned as a matter of course. Sometimes the Maratha officers arrested the relatives of absconding offenders in order to induce them to come out of their hiding and surrender themselves.

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¹² Kautilya, Arthashastra, p. 287.

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4. Penance:

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Let us now enquire why the Chhatrapatis and the Peshwas after them, deemed it incumbent on themselves to prescribe some religious penance for convicted offenders. The king was regarded as not only the chief magistrate, but also as the ecclesiastical head of the state, and regulator of social and religious customs and practices. "He shall protect the castes and orders," says Gautama, "in accordance with justice, and those who leave (the path of duty) he shall lead back (to it)."¹³ Certain crimes made the offender an outcast, and Vishnu tells us that "social intercourse with such criminals is also a high crime. He who associates with an outcast is outcasted himself after a year; and so is he who rides in the same carriage with him, or who eats in his company, or who sits on the same bench, or who lies on the same couch with him." ¹⁴ It is therefore clear that the Chhatrapatis and the Peshwas compelled the offender to undergo some religious penance in order to prevent the subversion of caste and order by contact with such offenders conscious or unconscious, intentional and unintentional. Moreover, it was the duty of the king, as Vashishtha tells us, to correct the evil-minded in every way.

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¹³ S. B. E., Vol. II, p. 232

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¹⁴ S. B. E., Vol. VII, p. 133.

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5. Adultery:

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Adultery was another offence for which very severe punishment was inflicted on the female offender. In the year 1746 one Bhikaji Gauli and his paramour were fined one khandi of ghi. The next year the wife of a Muhammadan carter was sent to prison; and in 1755 a Koli woman, Randki by name, was condemned to slavery, but she was saved from this terrible fate at the prayer of her kinsmen and was let off with a fine of Rupees fifty only. A fine of five hundred Rupees was inflicted on one Shankraji Chauhan for committing adultery in the year 1755-56; a girl was actually sold in slavery for failing to rise above the hankering of the flesh. ¹⁵ Under the administration of the elder Madhava Rao, it was decided that adultery with a willing woman deserted by her husband was no offence at all,¹⁶ but in two ordinary cases imprisonment was the punishment inflicted.¹⁷ In the year 1781-82 an adulteress, Ahili by name, was set at liberty after her nose had been cut off, while the male offender was let off with a fine only. A few years later another woman was released from prison on her father standing surety for her good conduct.¹⁸

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¹⁵ Peshwas' Diaries, Balaji Baji Rao, Vol. II, pp. 66-68.

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¹⁶ Peshwas' Diaries, Madhava Rao I, Vol. II, p. 209.

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¹⁷ Ibid, p. 210.

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¹⁸ Peshwas' Diaries, Madhava Rao, II, Vol. III, p. 108. .

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Let us now enquire how far these punishments had the sanction of the old lawgivers, or to what extent they were the inevitable corollary of the regulations laid down by them.

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Kautilya recommends three punishments for adultery. When any person abets a thief or an adulterer, he as well as the woman who voluntarily yields herself for adultery shall have their ears and nose cut off or pay each a fine of 500 panas, while the thief or the adulterer shall pay double the above fine.¹⁹ In a subsequent chapter dealing with sexual intercourse, Kautilya lays down, that "A woman who, of her own accord, yields herself to a man shall be slave to the king."²⁰ Again, "A relative or a servant of an absentee husband may take the latter's wife of loose character under his own protection. Being under such protection, she shall wait for the return of her husband. If her husband, on his return, entertains no objection, both the protector and the woman shall be acquitted. If he raises any objection, the woman shall have her ears and nose cut off, while her keeper shall be put to death as an adulterer."²¹ It is therefore clear that Ahili would have lost her nose, and the Koli girl would have been the king's slave like many of their fellow criminals even if they had been tried by a Mauryan court instead of a Maharashtra Nyayadhish. It should be noted at the same time that the principle laid down by Madhava Rao I had the approval of Kautilya who says "Those women who have been rescued from the hands of thieves, from floods, in famine, or in national calamities, or who, having been abandoned, missed, or thrown out as if dead in forests, have been taken home may be enjoyed by the rescuer as agreed upon."²² Narada is more explicit on this point. "A man is not punishable," says he, "as an adulterer for having intercourse with the wife of one who has left his wife without her fault, or of one impotent or consumptive, if the woman herself consents to it."²³ In the case above referred to, the woman had been abandoned by her husband and would have died of starvation, but for the food and shelter afforded to her by the man in question, and evidently she had given her consent.

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¹⁹ Arthashastra, pp. 284-85.

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²⁰ Arthashastra, p. 290.

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²¹ Arthashastra, p. 291.

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²² Arthashastra, p. 292.

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²³ S. B. E., Vol. XXXIII, p. 177.

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Slavery and imprisonment of an adulteress was perhaps the direct consequence of a regulation of Apastamba which says, "If a young man has had intercourse with a marriageable girl, his property shall be confiscated and he shall be banished. Afterwards the king must support such women and damsels, and protect them from defilement. If they agree to undergo the prescribed penance he shall make them over to their (lawful) guardians."²⁴ It goes without saying that when the king was expected to protect them, he should keep them under strict guard and watch, and as he had to support them, he should in his turn exact some work from these unfortunate women. The Marathas kept them in hill-forts and made them work there, the last portion of Apastamba's regulation however indirectly authorises the state to hand over a misled daughter to her father (lawful guardian) when the latter makes himself responsible for her moral welfare (stands surety for her future good conduct).

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²⁴ S. B. E., Vol. II, p. 163.

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Manu's punishment for this not unnatural offence was very horrible indeed. "If a wife, proud of the greatness of her relatives or her own excellence, violates the duty which she owes to her lord, the king shall cause her to be devoured by dogs in a place frequented by many."²⁵ We do not know whether this law was ever put into practice by the ancient Hindus, it was not in use in the Maratha days. Though the Peshwas on some rare occasions condemned a troublesome rebel to be trampled to death by an infuriated elephant, we do not know any instance of a misguided woman being thrown to hungry dogs.

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²⁵ S. B. E., Vol. XXV, p. 319.

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Another punishment which Manu recommends for "a woman who pollutes a damsel"²⁶ also deserves our notice, as a similar punishment has been prescribed by Vashishtha for the adulteress herself. "If a Shudra approaches a female of the Brahman caste," Vashishtha lays down, "the king shall cause the Shudra to be tied up in Virana grass and shall throw him into a fire. He shall cause the head of the Brahmani to be shaved and her body to be anointed with butter; placing her naked on a black donkey, he shall cause her to be conducted along the high road."²⁷ King Brahmadatta of Benares had inflicted this punishment on his unfaithful queen Soshumba, as we read in the Devavataravadana of Kshemendra's Bodhisattvavadanakalpalata. It was, however, not in general use when the Marathas established their sway in the Deccan.

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²⁶ S. B. E., Vol. XXV, p. 318.

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²⁷ S. B. E., Vol. XIVI, p. 109.

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6. Slaves:

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We have read of slavery as a punishment for adultery. Let us now enquire into the rights of slaves and the law of manumission. According to Manu, "a slave cannot have any property, the wealth he earns belongs to his master."²⁸ In Maratha days a slave could not only earn on his own account but he could inherit property; in fact slaves were often permitted to purchase their liberty.²⁹ But the Maratha practice, though contrary to the codes of Manu, had the authoritative support of Chanakya who says, "A slave shall be entitled to enjoy not only whatever he has earned without prejudice to his master's work, but also the inheritance he has received from his father."³⁰ Marriage of a female slave under the Maratha law was equivalent to her manumission, and Kautilya lays down almost the same principle when he writes, "When a child is begotten on a female slave by her master, both the child and its mother shall at once be recognised as free."³¹ The Marathas only went a step further, they liberated their female slaves, whether these were married at their own instance or otherwise, with free men or fellow slaves.

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²⁸ S. B. E., Vol. XXV, p. 326.

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²⁹ Broughton, Letters written in a Maratha Camp.

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³⁰ Kautilya, Arthashastra, p. 232.

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³¹ Arthashastra, p. 233.

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7. Procedure in a civil suit:

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Civil suits were, in the first instance, tried by a Panchayat or a court of arbitration consisting of village elders. The origin of such courts can be traced to the regulations of Narada, Brihaspati and Shukracharya. "Gathering (kula), corporations (shreni), assemblies (gana), one appointed by the king and the king (himself) are invested with power to decide law suits."³² Brihaspati was of opinion that "Cultivators, artizans (such as carpenters or others), artists, moneylenders, companies of (tradesman), dancers, persons wearing the token of religious order (such as Pasupatas), and robbers should adjust their disputes according to the rules of their own profession. And relatives, companies (of artizans), assemblies (of co-habitants) and other persons duly authorised by the king, should decide lawsuits among men, excepting causes concerning violent crimes."³³ The judicial authority of shrenis, kulas and ganas is acknowledged by Shukra also.³⁴ It is clear that the Maratha Panchayat was not quite identical with kulas (families), ganas (communities) and shrenis (corporations), but it is not impossible that it was from this prescriptive right of these corporate bodies of old, that the Maratha village community, a corporate body in itself, derived its judicial powers, which was exercised by the Panchayat, subject to the sanction of the state as in the old Hindu days. Brihaspati's assemblies of co-habitants seems to be more akin to, if not the actual prototype of, the village Panchayat.

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³² Narada, S. B. E., XXXIII, pp. 6 and 7.

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³³ S. B. E., Vol. XXXIII, p. 280.

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³⁴ Shukranitisara, S. B. H., p. 185.

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The plaintiff is called Purvavadi in Marathi documents and the defendant is styled as Uttarvadi. This naturally reminds one of Purvapaksha and Uttarapaksha of the Shukranitisara,³⁵ which however stood for the plaint and the answer. The plaintiff first submitted a written statement and the defendant then submitted his own version of the case in writing. Then evidence was heard and judgment delivered. Finally the losing party had to execute a deed called Jayapatra or Yejitkhat in favour of the winner. This is the procedure recommended by the old law-givers. Narada lays down, that "the claimant, after having produced a pledge the value of which has been well ascertained, shall cause the plaint to be written. The defendant immediately after having become acquainted with the tenor of the plaint, shall write down his answer, which must correspond to the tenor of the plaint."³⁶ Brihaspati says, "The part called the declaration, the part called the answer, the part called the trial, and the part called the deliberation of the judges regarding the onus probandi: these are the four parts of the judicial proceeding. The plaint is called the first part, the answer is the second part, the trial is the third part, and the judgment is the fourth part." ³⁷

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³⁵ S. B. H., p. 196.

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³⁶ S. B. E., Vol. XXXIII, p. 24.

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³⁷ S. B. E., Vol. XXXIII, p. 289.

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The practice of granting a Jayapatra to the winner was well known when Shukra compiled his work on polity, as will appear from his description of the document. "A Jayapatra," says he, "is one that contains an account of the case or suit brought forward, arguments for and against and also the decision." Every student of the Maratha administrative system knows that this is equally true of Marathi Jayapatras or Yejitkhats.

8. Evidence

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Let us now enquire how far the old rules about evidence were adhered to in the Maratha courts. In boundary disputes and suits about proprietorship, the evidence of the village officers of the artisans or Balutas and the officers of the neighbouring villages was mainly relied on. This law is at least as old as the Maurya Empire. We read in Kautilya's Arthashastra, "In all disputes regarding the boundary between any two villages neighbours or elders of five or ten villages shall investigate the case on the evidence to be furnished from natural or artificial boundary marks. Elders among cultivators and herdsmen, or outsiders who have had the experience of former possession in the place, or one or many persons (not) personally acquainted with the boundary marks under dispute, shall first describe the boundary marks and then wearing unusual dress shall lead the people to the place. Disputes concerning fields shall be decided by the elders of the neighbourhood or of the village. All kinds of disputes shall depend for their settlement on the evidence to be furnished by the neighbours." ³⁸ Manu held that "witnesses from neighbouring villages should be called to give evidence in a boundary dispute on failure of witnesses from the two villages." ³⁹ According to Narada "In all quarrels regarding landed property or boundaries, the decision rests with the neighbours, the inhabitants of the same town or village (the other) members of the same community, and the senior inhabitants of the District. As also with those living outside on the outskirts of the village and who live by the tillage of the fields situated in those parts and with herdsmen, bird-catchers, hunters and other inhabitants of the woods. These men shall determine the boundary." ⁴⁰ Brihaspati says, "in a dispute regarding a house or field, the decision belongs, to the neighbours as well as to the inhabitants of that town or village, or to members of the same society, and to the elders (of that district). Likewise, to husbandmen, artisans, servants, cowherds, hunters, gleaners, diggers of roots, fishermen, kinsmen, mischiefmakers, and robbers." 41 The Balutas and Alutas fall under the artisans, cowherds, gleaners, etc. Shukracharya is more explicit on this point and his regulations had more direct resemblance with the Maratha practice. He was of opinion that "the documents of gifts, sale and purchase about immovable goods are valid only when approved by the receivers and having the Gramapas or village officers as witnesses." These regulations explain why village officers, artisans and elders from the neighbouring villages were called to give evidence in disputes about boundary and fields.

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³⁸ Kautilya, pp. 214-215.

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³⁹ S.B.E., Vol. XXV, p. 300.

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⁴⁰ S.B.E., Vol. XXXIII, pp. 155-156.

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Brihaspati recommends a curious way of deciding a boundary dispute when no witness or reliable evidence was available. "In default of witnesses and signs, even a single man, agreeable to both parties, may fix the boundary, wearing a red garland of flowers and a red cloak, putting earth on his head adhering to truth, and having kept a fast." 42 A disputed boundary was fixed by a Patil of one of the contending villages, during the reign of Chhatrapati Shahu, not indeed with red garlands and red cloaks on and earth on his head, but he walked over the boundary with a cow's hide on his head and putting a garland of *tulsi* beads round his throat. This in fact was a decision by ordeal.

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⁴¹ S.B.E., Vol. XXXIII, p. 352.

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⁴² S.B.E., Vol. XXXIII, p. 352.

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Trial by ordeal was very popular in Southern India under the Maratha rule. Their various forms have already been described in Book II.⁴⁸ We shall now confine ourselves to an enquiry into their antiquity here.

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⁴⁸ Also see a very able paper by Mr. Bhaskar Vaman Bhat in the Bharat Itihas Sanshodhak Mandal's Tritiya Sammelan Vritta.

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Ordeal as a means of ascertaining truth has been in practice from very old times. Gledner suggests that ordeal by a red-hot axe is referred to in the Rig Veda. Griffith discovered in another passage of the Rig Veda reference to fire and water ordeals. According to Weber, Tula or the balance ordeal is referred to in the Satapatha Brahmana. Macdonnel and Keith do not agree with any of these scholars. Schlagintweit, Weber, Ludwig, Zimmer and others thought that fire ordeal was mentioned in the Atharva Veda, but Bloomfield and Whitney have disproved their contention. Macdonnel and Keith are of opinion that although the term *divya* or ordeal is not found in the Vedas proper, the practice is referred to in the Vedic literature, for instance in the Panchavimsha Brahmana and the Chhandogya Upanishad.⁴⁴

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⁴⁴ Macdonnel and Keith, Vedic Index, Vol. I, pp. 317, 318, 364-365.

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Father Manu provides for trial by ordeal. He says "The judge may cause the party to carry fire or to dive under water, or severally to touch the heads of his wives and children. He whom the blazing fire burns not, whom the water forces not to come quickly up, who meets with no speedy misfortune, must be held innocent on the strength of his oath. For formerly when Vatsa was accused by his younger brother, the fire, the spy of the world, burned not even a hair of his by reason of his veracity.⁴⁵ According to Apastamba, "In doubtful cases they shall give their decision after having ascertained the truth by inference, ordeal and the like means."⁴⁶ Vishnu not only recommends trial by ordeal but lays down detailed regulations about the performance of ordeal by balance, fire, water, and sacred libation, about the time of their performance as well as the case and the party to be tried by each of these ordeals.⁴⁷ Ordeals by balance, fire, water, poison and metal are recommended by Yajnavalkya.⁴⁸ He also lays down that an ordeal should be performed at sunrise in the presence of the king and Brahmans and after the party has performed a bath. Narada says, " Proof is said to be of two kinds, human and divine. Human proof consists of documentary and oral evidence. By divine proof is meant the ordeal by balance and the other (modes of divine test). Where a transaction has taken place by day, in a village or town, or in the presence of witnesses, divine test is not applicable.⁴⁹ Divine test is applicable (where the transaction has taken place) in a solitary forest, at night, or in the interior of a house, and in cases of violence or of denial of a deposit."⁵⁰ Brihaspati also recognised the two-fold division of evidence, human and divine. Divine test according to him was nine-fold.⁵¹ Sukracharya testifies not only to the legality but also to the antiquity of trial by ordeal. He says " In the matter of decision of cases by the divya, fire, poison, vessel, water, virtue, and vice, rice and oaths—these are prescribed by the sages."⁵² Ordeal by water is mentioned in the Padmavatyavadana of Bodhisattvavadankalpalata.

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⁴⁵ S.B.E., Vol. XXV, p. 274.

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⁴⁶ S.B.E., Vol. II, p. 168.

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⁴⁷ S.B.E., Vol. VII, pp. 52-61.

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⁴⁸ Tulānyāpo viṣaṃ kośo divyāniha viśuddhaye.

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⁴⁹ Compare Marathi 'Gohi āsta ravānāthi.'

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⁵⁰ S.B.E., Vol XXXIII, pp. 30-31.

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⁵¹ S.B.E., Vol. XXXIII, p. 297.

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⁵² S.B.H., Shukra-nitisara, p. 204.

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Foreign travellers also testify to the popularity of trial by ordeal in India. The Chinese traveller Youan Chwang visited India during the seventh century A.D. He gives a detailed account of different forms of ordeal. He says,—

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"These (ordeals) are by water, by fire, by weighing and by poison. In the water ordeal the accused is put in one sack and a stone in another, then the two sacks are connected and thrown into a deep stream; if the sack containing the stone floats and the other sinks the man's guilt is proven. The fire ordeal requires the accused to kneel and tread on hot iron to take it in his hands and lick it, if he is innocent he is not hurt, but he is burnt if he is guilty. In the weighing ordeal the accused is weighed against a stone; and if the latter is lighter the charge is false, if otherwise it is true. The poison ordeal requires that the right hind leg of a ram be cut off, and according to the portion assigned to the accused to eat, poisons are put into the leg, and if the man is innocent he survives, and if not the poison takes effect." ³³

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³³ Watters, On Youan Chwang, Vol I, p. 172.

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The celebrated Muhammadan astronomer Abu Rihan Alberuni accompanied Sultan Mahmud of Ghazni to India on one of his several expeditions and has left an interesting account of the manners and customs of the Hindus as he saw them. He mentions ordeal by water, libation water, balance, heated metal and fire. ³⁴ Trials by ordeal have been mentioned in several South Indian inscriptions, as Lewis Rice tells us, "The earliest method consisted in the accused making oath in the presence of the god holding at the same time the consecrated food. If guilty, it would choke him on partaking of it. Instances of this ordeal appear in 1241 and 1275. In the first the payment of some money was in question, the second was a boundary case. The ordeal of grasping a red-hot iron rod or bar in the presence of the god Hoyasaleshvara is recorded in 1309. A later form of ordeal was perhaps a severer test and consisted of making oath as before and then plunging the hand into boiling Ghi. If no injury resulted, the defendant won (his cause). Instances occur in 1580 and 1677.⁵⁵ Thus, the continuity of this practice has been established beyond doubt from the Vedic times to the first decade of the 19th century when the Maratha empire came to an end.

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³⁴ Sachau, Alburni's India, Vol. II, pp. 159-160.

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⁵⁵ Lewis Rice, Mysore and Coorg from the Inscriptions, p. 177.

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It is also noteworthy how some of the most popular ordeals in the Maratha days conformed in every minute detail to the rules of the old sages. We read of one instance in which the ordeal consisted of a simple oath taken by touching Shahu's feet. This ordeal had the sanction of Shukra who says—"He has to touch the feet of superiors, * * or swear by the gods, 'let me be cursed with the burden of sins, let all my merits be extinguished.'"⁵⁶ The two most popular ordeals in the Maratha period were those by fire and heated metal, *agni-divya* and *rava*.

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⁵⁶ S.B.H., p. 205.

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*Narada on Fire ordeal*:

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Let us now compare the Maratha practice with regard to these two ordeals with the regulations of Narada who has devoted a long chapter to ordeals. Says Narada, "I will propound next, the excellent law regarding ordeal by fire. The interval between every two circles is ordained to measure thirty-two Angulas. Thus the space covered by the eight circles will measure two hundred and fifty-six Angulas. He should place seven leaves (on his hands with seven threads). A professional blacksmith who has practice in working with fire, and whose skill has been tested on previous occasions, should be caused to heat the iron in fire. An iron ball fifty palas in weight having been repeatedly made fiery, sparkling and red-hot, a pure Brahman who reveres the truth should address it as follows. * * * This prayer having been carefully written on a leaf and recited he should fasten the leaf on his head, and after having done so, should then give him the iron ball. Having bathed and stepped into the space covered by the eight circles, he should seize the fiery ball, take his stand on one circle and walk slowly through the seven others. The man must not put it down again till he passed through the whole of the measured ground. On reaching the eighth circle, he may drop the fiery ball, * * In this way the ordeal by fire should always be performed. It is adapted for every season except summer and very cold weather. All sores and scars on his hands should be marked with signs previously, and one should examine the hands again afterwards (and look after) the dots with which the sores have been marked. If it does not appear whether (either of) the two hands is burnt, he shall take and seven times crush grains of rice in his hand, with all his might. The grains having been crushed by him, if the members of the court should declare him to be unburnt, he shall be honourably released as being innocent. If he is burnt he shall receive due punishment."³⁶

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³⁶ S. B. E., Vol. XXXIII, pp. 108-111.

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We read the following account of an agni-divya in a Marathi document. "On Wednesday my hands were bandaged and sealed. The next day, Thursday, the aforesaid Pandit sat with the Brahmans, Watandars and men of note on the banks of the Godaveri, opened the bandage of my hands in the presence of the god, and had them rubbed with rice, and then they were washed. The signs on the two hands were all marked and an iron ball fifty palas or 168 tolas 2 mashas in weight was duly weighed and thrice heated in fire. They bound a *bhalapatra* on my forehead, placed seven *ashvathva* leaves on my hands and bound them with thread. Then they placed the ball on my hand and ordered me to walk over seven circles and drop the ball on the eighth. Accordingly I walked over the seven circles and dropped the ball on some grains which had been kept in the appointed place and the grains took fire. * * Then the aforesaid Pandit, and all the assembly inspected my hands and they were shown to Ganesh Dattaji. The hands were not even slightly burnt by fire. Then they again bandaged and sealed my hands and after two *prahars* of day and four *prahars* of night had elapsed they took me to the assembly on Friday (the Dvadashi) morning. The bandage was taken off and the aforesaid Pandit and the people assembled inspected the hands. Both the hands were shown to Ganesh Dattaji. No wound, not even one of the size of a sesame seed, was seen on the hand. The signs on the hands noted at the time of the ordeal were carefully compared, there was no difference whatever." ³⁷ Almost all the details of Narada's regulations were carefully attended to in the abovementioned ordeal. In fact the old practice continued with very little variation. This conclusion will be further confirmed by a comparison between Alberuni's account of an ordeal by heated metal and a Marathi account of rava in an old Mahajar.⁵⁸ Trial by ordeal survived in Southern India till the downfall of the Marathas and it existed in a modified form in Travancore.⁵⁹

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³⁷ Watanpatra Nivadpatra, p. 51.

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⁵⁸ Watanpatra Nivadapatra, Ed. Parasnis and Mawji, p. 7.

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⁵⁹ Drury, Life and Sports in Southern India, pp. 66, 69 and 70.

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It is clear that many of the Maratha institutions were nothing but relics of the Hindu age.⁶⁰ How far these were transmitted by the Muhammadan rulers of India and how far they were revived by the Hindu kings has yet to be ascertained. No one, who has read Persian *farmans* can be blind to their striking resemblance with Marathi documents of similar nature. Eventually it may be found that the Marathas were not a little indebted to their Muhammadan rulers for their civil and military institutions. Whatever might have been the extent of their indebtedness, whether they improved upon the system they had inherited or whether they were mere blind imitators, the continuity of the indigenous system cannot be denied. The contribution of the Muhammadans to this interesting evolution is certainly worth studying.

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⁶⁰ Even the practice of *Dharma* had the sanction of the old *Dharma Shastras* as Professor Washburton Hopkins has pointed out. See Cambridge History of India, Vol., I.

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