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‘And does not prove what he has asserted,’ — i.e., having put forward the case he has to prove, he fails to establish it, because he has no proofs, and not because he has no opponent (against whom he would have to establish it).

‘Who does not grasp the precious and subsequent statements’; — this has been already explained (under 53).

For the said reasons, the person fails in the matter of the suit; i.e., is defeated. — (56)

Explanatory notes by Ganganath Jha:

‘Pūrvāparam’ — ‘The plaint and its answer’ (Medhātithi); — ‘the proof and the matter to be proved’ (Kullūka); — ‘what should be said first and what afterwards’ (Nārāyaṇa and Nandana).

This verse is quoted in Kṛtyakalpataru (22b) which says that ‘brūhi’, ‘speak out’ has to he reiterated for the sake of firmness; — and in Vīramitrodaya (Vyavahāra, 31b).

Comparative notes by various authors:

(verses 8.53-57)

See Comparative notes for Verse 8.53.

VERSE 8.57

Section XII - Non-payment of debt

साक्षिणः सन्ति मेत्युक्त्वा दिशेत्युक्तो दिशेन्न यः ।
धर्मस्थः कारणैरेतैर्हीनं तमपि निर्दिशेत् ॥५७॥

sākṣiṇaḥ santi metyuktvā diśetyukto diśenna yaḥ |
dharmasthaḥ kāraṇairetairhīnaṃ tamapi nirdiśet ||57||

Having asserted that he has witnesses, and on being asked to name them, if he does not name them, — him also, on these grounds, the judge shall declare to have failed in his suit. — (57)

Medhātithi’s commentary (manubhāṣya):

The term ‘jñātāraḥ’ stands for witnesses. Having said that ‘I have witnesses,’ he is ordered — ‘name them’; thereupon, if he does not name them, indicating their residence, name and caste; — then, on each of the above-mentioned grounds, he should be regarded as having failed.

‘Dharmasthaḥ’ is one who has been appointed to try cases, — the Judge; and he should pronounce him to have failed, saying ‘this man is non-suited.’

Just as one loses his case by the other party adducing proofs establishing the contrary of his contention, so does he lose it also by the absence of proofs in support of it; and this absence of proofs is ascertained by the fact of their not being adduced by the party at the right time, even though repeatedly asked to do so, — as also by the adducing of proofs to the contrary.

‘Jñātāraḥ’ ends in the ‘tṛn’ affix; and as such it should govern a noun in the Accusative case, the use of the Genitive being precluded by Pāṇini, 2.3.69.

The right reading being ‘hīnam tam’ — the particle ‘iṭi’ should be taken as denoting kind; — the sense being — ‘on these, and on other similar grounds, the Judge shall declare him to have failed’; — if, on the other hand, the particle ‘iti’ he taken as referring to the whole sentence, then the correct reading would he ‘hīno’-sau’; because the whole sentence being the object of the verb, there would be nothing to justify the use of the Accusative ending (in ‘hīnam tam’).

These grounds of defeat are infallible, unlike the aspect, gestures, etc. (of the parties), which are fallible.

If at the time of the enquiry, a party does not present himself, — or oven though presenting himself, does not offer any answer, — then it becomes certain that there are ne grounds for the man succeeding in his suit. If the King were not to non-suit the party who never offers an answer, then the entire judicial machinery would become upset.

As regards the man not perceiving the inconsistency between his first and subsequent statements, — this has to be treated on the same footing as gesture and other indicative signs. In the case of a man who throughout is very talkative and bold and clever, gestures and other indicatives are not infallible guides; and being similar to indirect verbal indicatives, they are only regarded as corrobarative of the decision regarding defeat or victory taken on other grounds. — (57)

Explanatory notes by Ganganath Jha:

This verse is quoted in Kṛtyakalpataru (22b), which explains ‘dharmasthaḥ’ as ‘one who is occupying the judgment seat’; — and in Vīramitrodaya (Vyavahāra, 31b), which explains the construction as — ‘mā,’ mām, ‘gnātāraḥ,’ persons knowing that what I state is true, &c., &c., as being, according to Medhātithi, but goes on to add, that according to the Ācārya,’ ‘meti’stands for ‘me-iti,’ the sandhi being explained as a Vedic anomaly. It notes the reading, ‘Santi jñātāra ityuktvā,’ as found in Kalpataru, but rejects it as an unauthorised reading.

Comparative notes by various authors:

(verses 8.53-57)

See Comparative notes for Verse 8.53.

VERSE 8.58

Section XII - Non-payment of debt

अभियोक्ता न चेद् ब्रूयाद् बध्यो दण्ड्यश्च धर्मतः ।
न चेत् त्रिपक्षात् प्रब्रूयाद् धर्मं प्रति पराजितः ॥५८॥

abhiyoktā na ced brūyād badhyo daṇḍyaśca dharmataḥ |
na cet tripakṣāt prabrūyād dharmaṃ prati parājitaḥ ||58||

If the complainant does not speak out, he shall be imprisoned and pined, according to law. If the other party does not answer within three fortnights, he becomes defeated according to law. — (58)

Medhātithi’s commentary (manubhāṣya):

If the ‘complainant’ — plaintiff — having gone to the King, and on getting the other party summoned, — does not state his case, then, on account of haring done all this needlessly, ‘he shall be imprisoned and fined’; whether the punishment shall be imprisonment or fine, and what shall be the exact period and amount of these, should he determined in accordance with the nature of the case and the loss entailed upon the other party on account of being summoned. For this reason it is necessary for the complainant to state his case on the same day.

As for the defendant, ‘if he does not answer within three fortnights,’ — then he shall not be either imprisoned or fined; in fact, if he does not answer the charge within the time, he loses the case.

‘According to law’; — such defeat would be quite legal, and not illegal.

‘Within three fortnights’;............ (?)

The real meaning of this verse has been explained by us above (under verse 56). — (58)

Explanatory notes by Ganganath Jha:

This verse is quoted in Kṛtyakalpataru (22b).

Comparative notes by various authors:

Nārada (2.2). — ‘Tho defendant, immediately after having become acquainted with the plaint, shall write down his answer, which must correspond to the tenour of the plaint; or, let him deliver his answer on the next day, or in three days, or in seven days.’

Bṛhaspati (4.1-6). — ‘When the plaint has been well-defined, a clear exposition given of what is claimed and what not, and the meaning of the plaint fully established, the judge shall cause the answer to be submitted by the defendant. If the defendant does not make an answer fully meeting the contents of the plaint, he shall be compelled to pay by gentle remonstrance and other methods; — kindly speeches constitute gentle remonstrance, intimidation is pointing out danger.’ Force consists of depriving one of his property, or striking or confining him. When a man makes no answer, even though all methods have been employed, he is defeated and liable to punishment after a week. When the defendant asks for time, through timidity or terror or failing memory, time shall be granted to him. He shall bo allowed time extending to one day, or three days, or five days, or seven days, or a fortnight, or a month, or three seasons, or a year, according to his circumstances.’

VERSE 8.59

Section XII - Non-payment of debt

यो यावद् निह्नुवीतार्थं मिथ्या यावति वा वदेत् ?? ।
तौ नृपेण ह्यधर्मज्ञौ दाप्यौ तद्द्विगुणं दमम् ?? ॥५९॥

yo yāvad nihnuvītārthaṃ mithyā yāvati vā vadet ?? |
tau nṛpeṇa hyadharmajñau dāpyau taddviguṇaṃ damam ?? ||59||

If one falsely denies a debt, or if the other falsely demands it, — these two, proficient in dishonesty, should be made by the king to pay a fine double that sum. — (59)

Medhātithi’s commentary (manubhāṣya):

In a case where on the strength of other proofs it has boon decided that the creditor had lent only 5,000, while the sum entered in the document is 10,000; from this it is understood that, the creditor has been dishonest in his dealings, having thought that, as other kinds of evidence would be admissible only for one year, he would get what he would prove by moans of the documentary evidence only; and being found to be dishonest, he should ho fined double the amount. But in a case where there may he a doubt as to whether the fraud had been committed intentionally, or only through carelessness, the fine shall be only ten per cent.

Similarly in the case of the defendant also. It is not that if he denies the whole claim, the tine shall be ten per cent, and if he denies it only partly, then double the amount. As a matter of fact, when they are found to be dealing dishonestly, they shall he fined double the amount; while if their behaviour is found to be due to either negligence or poverty, the fine shall be only ten per cent.

When ‘one’ — i.e., the debtor — ‘denies the debt,’ and when the other, i.e., the creditor — ‘falsely’ — dishonestly — demands it; — then both these, the creditor as well as the debtor would be ‘proficient in dishonesty,’ and should be fined ‘double the sum’; — ‘the sum’ standing for what is denied; so that the sense is that the fine shall be double the sum that was denied.

The addition of the term ‘proficient in dishonesty’ indicates that the penalty is imposed for proved dishonesty. — (59)

Explanatory notes by Ganganath Jha:

Verses 59-61 are not omitted by Medhātithi, as wrongly asserted by Hopkins.

This verse is quoted in Vivādaratnākara (p. 77), which adds the following explanation: — When the defendant, through dishonest motives, denies the claim, — or when the plaintiff prefers a false claim, — both those are dishonest dealers, and they should be punished with a fine, which is the double of the amount of the claim; — in Vivādacintāmaṇi (p. 34), which says that this rule refers to cases where the culprit is very wealthy; — and in Kṛtyakalpataru (80b).

Comparative notes by various authors:

Vyāsa (Vivādaratnākara, p. 77). — ‘He who makes a false claim should be made to pay twice the value of the claim.’

Yama (Do., p. 78). — ‘If the debtor, even though possessed of the requisite means, does not repay the debt, through dishonesty, he should be compelled by the King to pay, having realised from him double of his debt.’

Nārada (Vivādaratnākara, p. 78). — ‘If the debtor, even though possessed of the requisite means, does not repay the debt, through dishonesty, he should be compelled by the King to repay, after taking from him the twentieth part of the claim as fine.’

Yājñavalkya (2.11). — ‘If a party makes a false statement, and the other party proves it to he so, then the former shall pay to the King a fine equal to the amount of the claim. The man who makes a false claim shall pay to the King a fine equal to double the amount of the claim.’

VERSE 8.60

Section XII - Non-payment of debt

पृष्टोऽपव्ययमानस्तु कृतावस्थो धनेषिणा ।
त्र्यवरैः साक्षिभिर्भाव्यो नृपब्राह्मणसंनिधौ ॥६०॥

pṛṣṭo'pavyayamānastu kṛtāvastho dhaneṣiṇā |
tryavaraiḥ sākṣibhirbhāvyo nṛpabrāhmaṇasaṃnidhau ||60||

On having been summoned and questioned, if one denies it, — then he siiall be convicted by the man seeking for his due by means of at least three witnesses, in the presence of the king and the brāhmaṇas. — (60)

Medhātithi’s commentary (manubhāṣya):

Being ‘summoned’ — called, complained against, and let off on security, — ‘and questioned’ — in the presence of the King, either by the judge or by other members of the Court — ‘Do you, or do you not, owe this amount to this person?’ — if the man denies it; ‘then he shall he c onv icted,’ — proved to be wrong — ‘by the man seeking for his due’ — i.e., by the person who is desirous of proving that the sum had been really lent by him, — ‘by means of at least three witnesses’; — the compound ‘tryavara’ means ‘of whom three is the least number,’ the term ‘avara’ standing for the minimum; the meaning being that if they are to be fewest, they should he three; otherwise they should he more than three; — in the presence of the King and the Brāhmaṇas.’

An objection is raised: — “The witnesses are naturally to be questioned before the persons by whom the case has begun to be tried; why then should it ho asserted that this has to be done in the presence of the King and the Brāhmaṇas?”

There is no force in this. It is just possible that the witnesses might be questioned by deputing a trustworthy person to go to them; hence with a view to emphasise that the witnesses should be questioned personally by the trying persons, it has been reiterated here. — (60)

Comparative notes by various authors:

Nārada (2.26). — ‘When the defendant denies the claim, the plaintiff has to prove his claim, unless the denial should have been in the form of a special plea. What the plaintiff has fully stated in the plaint, that he must substantiate by adducing evidence at the third stage of the trial.’

Nārada (1.147 (?)). — ‘In doubtful cases, when two parties are quarrelling with one another, the truth has to be gathered from witnesses, whose knowledge is based on what has been seen, heard or understood by them.’

Bṛhaspati (5.1-3). — ‘When litigants are quarrelling in a court of justice, the Judges, after examining the answer, shall adjudge the burden of proof to either of the two parties. The Judges............ having determined to which party the burden of proof shall be adjudged, that person shall substantiate the whole of his declaration by documents or other proofs. The plaintiff shall prove his declaration, and the defendant his special plea.’

Āpastamba (2.29.7). — ‘The witness shall answer the questions put to him, according to the truth, in the morning, before a kindled fire, standing near water, in the presence of the King, with the consent of all, after having been exhorted by the Judges to be fair to both sides.’

Gautama (13.1). — ‘In disputed cases the truth shall be established by means of witnesses.’

Yājñavalkya (2.69). ‘Witnesses should be at least three.’

VERSE 8.61 [Evidence]

Section XII (A) - Evidence

यादृशा धनिभिः कार्या व्यवहारेषु साक्षिणः ।
तादृशान् सम्प्रवक्ष्यामि यथा वाच्यं ऋतं च तैः ॥६१॥

yādṛśā dhanibhiḥ kāryā vyavahāreṣu sākṣiṇaḥ |
tādṛśān sampravakṣyāmi yathā vācyaṃ ṛtaṃ ca taiḥ ||61||

I shall declare now what sort of persons should be made witnesses in suits by wealthy men, and how the truth should be told by them. — (61)

Medhātithi’s commentary (manubhāṣya):

The verse introduces the section dealing with witnesses.

‘What sort of persons’ — i.e., of what, castes and with what qualifications.

‘Wealthy men’ — creditors.

‘Suits’ — dealing with money-transactions.

I shall describe now what sorts of witnesses shall he adduced; and also how the truth should be told by them, when questioned, — this also I shall explain. — (61)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vyavahāra-Bālambhaṭṭī (p. 256); — and in Smṛticandrikā (Vyavahāra, p. 173).

Comparative notes by various authors:

(verses 8.61-63)

Baudhāyana (1-19.13). — ‘Men of the four castes who have sons may be witnesses, excepting Śṛotriyas, the King, ascetics and those destitute of human intelligence.’

Viṣṇu (8.8). — ‘Descendants of a noble race, who are virtuous and wealthy, sacrifices, zealous in the practice of religious austerities, having male issue, well versed in the holy law, studious, veracious, acquainted with the three Vedas and aged — shall be witnesses.’

Yājñavalkya (2.68.69). — ‘Persons devoted to austerities, charitable, of noble families, veracious, heedful of righteousness, straightforward, with sons, wealthy, devoted to acts prescribed in the Śruti and in Smṛtis; — such persons shall be witnesses; — they shall be at least three in number; the caste of the witnesses being consonant with the caste of the parties; or members of all castes may be witnesses for all eases.’

Bṛhaspati (7.16). — ‘There should be nine, seven, five, four or three witnesses; or two only, if they are learned Brāhmaṇas, are proper; but let him never examine an only witness.’

Gautama (13.2.3). — ‘Witnesses shall be many, faultless as regards the performance of their duties, worthy to be trusted by the King, and free from affection for, or hatred against, either party; — they may be even Śūdras.’

Bṛhaspati (7.28), — ‘Those may be witnesses who are in the habit of performing religious acts enjoined in the Vedas and Smṛtis, free from covetousness and malice, of respectable parentage, irreproachable, zealous in austerities, liberal and sympathetic.’

Āpastamba (2.29.7). — ‘A person possessed of good qualities may be called as a witness, and he shall, answer the questions.’

Vaśiṣṭha (16.28). — ‘Śrotriyas, men of unblemished form, of good character, men who are holy and love truth, are fit to be witnesses; — or men of any caste may give evidence regarding men of any other caste.’

Nārada (1.153-154). — ‘The witnesses shall be of honourable family, straightforward and unexceptionable as to their descent, their actions and their fortunes. They shall not be less than three in number, unimpeachable, honest and pure-minded. They shall be Brāhmaṇas, Kṣatriyas or Vaiśyas or irreproachable Śūdras. Each of these shall be witness for his own order; or all of them may be witnesses for all.’

VERSE 8.62

Section XII (A) - Evidence

गृहिणः पुत्रिणो मौलाः क्षत्रविद् शूद्रयोनयः ।
अर्थ्युक्ताः साक्ष्यमर्हन्ति न ये के चिदनापदि ॥६२॥

gṛhiṇaḥ putriṇo maulāḥ kṣatravid śūdrayonayaḥ |
arthyuktāḥ sākṣyamarhanti na ye ke cidanāpadi ||62||

Householders, men with sons, respectable natives, and men of the kṣatriya, vaiśya and śūdra castes are competent to act as witnesses, when cited by suitors; — and not any and every person, except in emergencies. — (62)

Medhātithi’s commentary (manubhāṣya):

‘Householders’ — persons who have married; the term ‘gṛha,’ ‘house,’ standing for wife. Through fear of trouble falling upon their wives, these men do not act dishonestly; there are many who may be indifferent in regard to consequences to themselves personally, and may give false evidence, thinking thus — ‘I shall save myself by going away to some other country, or even in this country I shall hide myself and acquire wealth and friends’; but when they have a family they have fears regarding the family and, setting aside all ideas of fleeing away and keeping themselves safe, and, in the best interests of the family, desist from dishonest dealings, through fear of punishments being inflicted upon their family.

‘Men with sons;’ — through love for their sons, such men shun all dishonest dealings; and further, people who have no wife and children, even though they may be quite honest, may not be available (meettai th)? of the evidence being taken; because such people do not have any fixed abode.

‘Maulāḥ,’ ‘respectable natives’; — this also is open to the same explanation. The terms stand for natives born in the country; these, being afraid of committing a sinful act among their own people, do not tell lies. the term ‘maula’ denotes ‘those who command mūla or respect’; but this is only an explanation of the denotation of the term; and the nominal affix denotes nativity. Men born in a country generally live there; so there is no incongruity in this.

‘Men of the kṣatriya, vaiśya and śūdra castes,’ — not the Brāhmaṇa, as for him, constant study and teaching have been prescribed, — or the daily offering of the Agnihotra offerings; so that if the King were at a distance from him, and he were summoned to appear before him, it would load to a dereliction of his duty; and it is with a view to guard against this that he is not mentioned as fit for being cited as a witness. But if the Brāhmaṇa happens to know all about the case, and there are no other witnesses, and the case is an important one, — then he is the most important witness. It is with a view to these latter cases that the exact form of question for the Brāhmaṇa-witness is going to be laid down: — ‘This Brāhmaṇa shall be examined by being asked to speak’ (verse 88 below).

The term ‘yoni’ (in the compound ‘kṣatra-viṭ-śūdra-yonayaḥ’) is to be construed with each of the preceding terms; the meaning being ‘those of whom the kṣatriya is the yoni or origin,’ i.e., those of the kṣatriya caste; or the right explanation of the compound may be with the Ablative — ‘kṣatrāt yoniḥ janma yasya,’ ‘he whose birth is from the kṣatriya caste.’

These persons become competent witnesses only when the suitor declares — ‘these are my witnesses.’ Those who come and volunteer to give evidence are not real ‘witnesses.’

‘Except in emergencies’. — Some people have explained that the ‘emergency’ meant here is the absence of other witnesses. But this is not right. Because untruthfulness is the only thing that disqualifies one from being a proper ‘witness’; and this disqualification does not cease, simply because other truthful witnesses are not available. We do not mean to say that the phrase (‘except in emergencies’) permits the admissibility as witnesses of such persons as have been definitely declared to be disqualified, or of those who have reasons to depose falsely, or those who are interested in the case; all that we mean is that in the event of no other witnesses being available, the saving clause permits the calling of such Vedic scholars and other persons as may be conversant with the facts of the case, whose summoning might interfere with these religious practices, — and not of admitted liars. — (62)

Explanatory notes by Ganganath Jha:

‘Maulāḥ’ — ‘Natives of the place’ (Medhātithi); — ‘heads of families or friends.’

This verse is quoted in Aparārka (p. 665); — and in Vyavahāra-Bālambhaṭṭī (p. 256).

Comparative notes by various authors:

(verses 8.61-63)

See Comparative notes for Verse 8.61.

VERSE 8.63

Section XII (A) - Evidence

आप्ताः सर्वेषु वर्णेषु कार्याः कार्येषु साक्षिणः ।
सर्वधर्मविदोऽलुब्धा विपरीतांस्तु वर्जयेत् ॥६३॥

āptāḥ sarveṣu varṇeṣu kāryāḥ kāryeṣu sākṣiṇaḥ |
sarvadharmavido'lubdhā viparītāṃstu varjayet ||63||

In all law-suits trustworthy men of all the castes, fully conversant with morality and free from avarice, should be made witnesses; the reverse of these should be avoided. — (63)

Medhātithi’s commentary (manubhāṣya):

‘Trustworthy,’ — who never say what is not in conformity with facts; who always state facts as they are actually seen; with regard to whom people never have any suspicion of being liars.

‘Fully conversant witḥ morality’; — who are always engaged in the performance of their religious duties, and who know them; i.e., who act up to all that is enjoined in the Veda and in the Smṛtis and sanctioned by usage, and who know everything regarding what leads to heaven and what to hell. Such people, perceiving that the telling of lies will lead to hell, are afraid of untruth.

‘Free from avarice,’ — i.e., of magnanimous temperament, not liable to regarding a little wealth as much.

Each individual witness should he possessed of all these qualification; these are stated as subsidiary to the act of giving evidence; and combination is always intended in regard to what are subsidiaries.

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