Verse 8.109 [Oaths and Ordeals]

Sanskrit text, Unicode transliteration and English translation by Ganganath Jha:

असाक्षिकेषु त्वर्थेषु मिथो विवदमानयोः ।
अविन्दंस्तत्त्वतः सत्यं शपथेनापि लम्भयेत् ॥ १०९ ॥

asākṣikeṣu tvartheṣu mitho vivadamānayoḥ |
avindaṃstattvataḥ satyaṃ śapathenāpi lambhayet || 109 ||

In witness-less cases, if he cannot get at the truth between the two disputants by any means, he should discover it by means of oath.—(109)

 

Medhātithi’s commentary (manubhāṣya):

‘Witnessless cases,’—those cases in which there are no witnesses;—in regard to these, when the king fails to find out the truth,—by any means,—i.e, by any ordinary methods,—‘he shall discover’—learn—it ‘by means of oath’—i.e, by transcendental methods of inference. The root ‘labh’ ‘to get at’ (in ‘lambhayet’), though literally meaning the attaining of a thing, indirectly implies knowing.

All that the advice conveyed by the injunction means is that ‘in cases where there are no witnesses, he shall discover the truth by means of oath’; all the rest merely fills up the metre.

‘Mithaḥ’—between themselves.—(109)

 

Explanatory notes by Ganganath Jha

‘Śapathena’—‘Supernatural proof’ (Medhātithi);—‘oath’—‘touching of the head and so forth’ (Nārāyaṇa),—or declaring ‘may heinous sins accrue to me if what I have said turns out to be untrue’ (Nandana).

This verse is quoted in Aparārka (p. 694), which adds that ‘asākṣikeṣu’ means ‘in cases where no human evidence is available’;—and in Vīramitrodaya (Vyavahāra, 71b), which explains ‘asākṣikeṣu’ in the same manner.

 

Comparative notes by various authors

Gautama (13.12-13).—‘Some declare that the witnesses shall be charged with oath to speak the truth. In the case of others than Brāhmaṇas that oath shall be sworn in the presence of Gods, of Brāhmaṇas and of the King.’

Viṣṇu (5.19).—‘Let the Judge summon the witnesses, at the time of sunrise, and examine them, after having bound them by an oath.’

Viṣṇu (9.33).—‘Let the Judge summon the defendant at the time of sunrise, after having fasted on the previous day and bathed in his clothes, and make him go through all the ordeals in the presence of Gods and of Brāhmaṇas.’

Nārada (1.235, 236, 239).—‘When owing to the negligence of the creditor, both documentary evidence and witnesses are missing,—and the defendant denies his obligation, three different methods may be adopted:—Timely reminder, Argument, and thirdly, Oath; these are the measures that the plaintiff should adopt against his adversary. If arguments are of no avail, let him cause the defendant to undergo one of the ordeals.’

Nārada (1.247-249).—‘If no witness is forthcoming, for either of the two litigant parties, he must test them through ordeals and oaths of every sort. When a heavy crime has been committed, the King shall administer one of the ordeals: in light cases, the virtuous king shall swear the man with oaths.’

Yājñavalkya (2.97).—‘Calling him at sun-rise, after he has fasted and bathed with clothes on, he shall make him go through the ordeals, in the presence of Gods, Brāhmaṇas and the King.’

Bṛhaspati (10.1-3).—‘A forger of gems, pearl or coral, one withholding a deposit, a ruffian and an adulterer shall, in every case, be tested by oaths and ordeals. In charges related to heavy crimes, or to the appropriation of a deposit, the King should try the case by ordeals, even though there be witnesses. When a thing has happened long ago, or in secret, or when the witnesses have disappeared, or are perjured all of them,—the trial should be conducted by having recourse to an ordeal.’

Śukranīti (4-5.460).—‘When argument also fails, ordeal has to be used in the investigation of cases.’

Do. (4-5.525).—‘If one party urges human evidence, and the other divine, the King should accept the former, not the latter.’

Śukranīti (4.5, 529).—‘The six kinds of decision are—through evidence, argument, custom, oaths, king’s edict and confession by the defendant.’