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Administrative System of the Marathas c25.s4: 8. Evidence

Administrative System of the Marathas c25.s4

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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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