Chapter 2.1c - Meaning of Vyavahāra

There are statements in the Mahābhārata, which indicate that the secular and municipal laws were called the vyavahāra. The Mahābhārata mentions the authority of the vyavahāra law is as sacred and great as that of the dharma law. Here it declares that the dharma law has its origin in the Vedic lore and the vyavahāra has its origin in political governance and the king. Governance is a sacred act, being ordained by the creator, and so its laws are also sacred.^[1] That vyavahāra is said to be established in the king. The vyavahāra as secular and municipal laws is implied in the statement of Bhīṣma that the vyavahāra as laid down in the Daṇḍanīti is the Veda for the Kṣatriya.^[2]

In the Arthaśāstra of Kauṭilya, the word vyavahāra is employed in a number of places. In vyavahārasthāpanā, vyavahāra indicates the law of contract or transaction between two or more parties, which may form the basis of a suit in a court of law.⁵⁹ Kauṭilya lays down that dharma, vyavahāra, carita and rājaśāsana are the four feet of a matter of dispute and the later one supersedes the earlier one.^[3] Here vyavahāra along with the other three are used to denote the means of arriving at a decision in lawsuit.^[4] Kauṭilya further, enumerates that dharma is based on truth and vyavahāra on witnesses.^[5] Here vyavahāra seems to be indicative of secular law.^[6] In another context of the Arthaśāstra, the word vyavahāra means, ‘entitled to legal rights and duties’ or ‘to become legally binding’.^[7] Jayaswal refers that in the statement vyāvahārikānarthān kuryuḥ in 3.1.57.1 of Arthaśāstra, vyavahāra signifies legal.^[8]

The Sūtras and the Smṛtis have used the word vyavahāra in different senses. One of the meanings conveyed by the term vyavahāra is ‘transaction or dealing’.^[9] This meaning of the word vyavahāra is evident in some of the passages of the Āpastambadharmasūtra, for instance āpadi vyavaharet paṇyānāmapaṇyāni vyudasyan, akṛītapaṇyairvyavahareta, daśame vyavahāre rāddhiḥ^[10] , etc. ‘A dispute’ or ‘a lawsuit’ is the most common sense of vyavahāra, which is used in the Smṛtis.^[11] It also means legal capacity to enter into transactions.^[12] The fourth meaning of the term which seldom occurs is ‘the means of deciding a matter’.^[13] The word vyavahāra is used to denote the sense of judicial procedure or administration of justice. For example, the Vasiṣṭhadharmasūstra while the administration of law begins “Now about the vyavahāras”.^[14]

Definitions of vyavahāra-

The Smṛtis and the commentaries have given a few definitions of vyavahāra.

The oft-quoted definition of Kātyāyana which is based on etymology, explains the term vyavahāra thus,

“The (upasarga) vi is employed in the sense of ‘various’, ava, in the sense of ‘doubt’, hāra means ‘removing’, vyavahāra is so called because of its removing various doubts.”^[15]

This definition well describes the true sense of the term. The purpose of vyavahāra, according to it, is removal of doubts, which means that administration of justice aims at the discovery of truth. There is another definition given by Kātyāyana that expresses the colloquial meaning of vyavahāra. It states that when the results of the right conduct, which are collectively called dharma and which can be established only with effort, have been violated, the dispute (in a court between parties) that arises from what is sought to be proved, is said to be vyavahāra.^[16] This means, the dharma that is accomplished by some efforts like truth-telling, non-violence, constancy etc. if breached by causes such as avarice, rashness and the like (e.g. in case of recovery of a debt, for securing one’s money, also in cases of a contract and the like) with a purpose to escape from other dharmas and taken resort to the administration of law, then the dispute among men having in its basis, points to be established is called vyavahāra. Thus, it appears that the first definition of Kātyāyana refers to procedure and the second means a dispute. Hārita defines vyavahāra in a simple way as that is called vyavahāra when the achievement of one’s own property or wealth taken away by another, and the avoidance of the dharma of others are secured or protected with the help of justice.^[17]

In the Śukranīti, vyavahāra is said to be that which by discriminating the truth from the false, looks after the virtues of both the people and the king and furthers their interests.^[18] The Mitākṣarā commentary on the Yājñavalkyasmṛti, written by Vijñāneśvara, defines vyavahāra as formal assertion (about a matter) as related to oneself in opposition to another.^[19] He has made it clear with an example that when someone says the land etc. as his own and another one opposes him claiming that it belongs to the latter, than the formal assertion made by each is called vyavahāra.

From the above definitions, it appears that vyavahāra means a judicial proceeding wherein the truth of a claim or charge made against the opposite party if not admitted, was to be decided according to the rule or method prescribed for it. The Vyavahāramayūkha of Nīlakaṇṭha lays down a comprehensive definition of vyavahāra. This definition describes that vyavahāra is an action or operation that makes possible the revelation of the wrong that is not known (at the time of beginning the operation) and that pertains to one out of the several persons that have a dispute (about it); or it is an operation in which complainant and defendant are the agents, in which possession, witnesses and other means of proof are applied depending upon the circumstances, to help in establishing the truth in the midst of conflicting alternatives.^[20]

Footnotes and references:

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[1]:

vyavahārastu vedātmā vedapratyaya ucyate/ maulaśca naraśārdūla śāstroktaśca tathāparaḥ// ukto yaścāpi daṇḍo’sau…styātmā bhūtivardhanaḥ// Mahābhārata, Śāntiparvan.121. 49-53

[2]:

yaśca daṇḍ sa dṛṣṭo no vyavahāraḥ sanātanaḥ/ vyavahāraśca yo dṛṣṭḥ sa dharma iti naḥ śrutaḥ// Ibid., 54 ⁵⁹ Arthaśāstra, 3.1.1-47

[3]:

dharmaśca vyavahāraśca caritraṃ rājaśāsanam/ vivādārthaścatuspādaḥ paścimaḥ pūrvabādhakaḥ// Ibid., 3.1.39

[4]:

Kane, P.V., Op.cit., Volume3 page259, Foot Note,336

[5]:

tatra satye sthito dharmo vyavahārastu sākṣiṣu/ Arthaśāstra, 3.1. 40

[6]:

Jayswal, K.P., Op.cit., page15

[7]:

dvādaśavarṣā strī prāptavyavahārā bhavati ṣoḍaśabarṣaḥ pumān/ Arthaśāstra, 3.3. 1

[8]:

Jayswal, K.P., Op.cit., page15

[9]:

ghṛṇī rājāpuṃścalī rājabhṛtyāḥ putro bhṛātā vidhavā bālaputrā/ senājīvī coddhṛtabhakta eva vyavahāra vai varjanīyāḥ syurete// Mahābhārata, Udyogaparvan, 37.26

[10]:

Āpastambadharmasūtra,1.7.20.11, 16; 2.7.16.17

[11]:

Mahābhārata, Śāntiparvan, 69. 26-28; Manusmṛti,8.1; Yājñavalkyasmṛti,2.1; Nāradasmṛti,1.1,2,etc.

[12]:

Gautamadharmasūtra, 10.48; Vaśiṣṭhadharmasūtra, 16.8, etc.

[13]:

tasya vyavahāro vedo dharmaśāstrānyaṅgānyupavedāḥ purāṇam/ Gautamadharmasūtra, 11.19

[14]:

atha vyavahārāḥ/ Vaśiṣṭhadharmasūtra, 16.1

[15]:

vi nānārthe’va sandehe haraṇaṃ hāra ucyate/ nānāsandehaharaṇāt vyavahāra iti smṛtaḥ// Kullūka on Manusmṛti, 8.1

[16]:

prayatnasādhye vicchinne dharmākhye nyāyavistare/ sā dhyamūlo’tra yo vādo vyavahāraḥ sa ucyate// Aparārka on Yājñavalkyasmṛti, 2.1

[17]:

svadhanasya yathā prāptiḥ paradharmasya varjanam/ nyāyena kriyate yatra vyavahāraḥ sa ucyate// Smṛticandrikā, Vyavahārakāṇḍa, 1, page2

[18]:

svaprajādharmasaṃsthānaṃ sadasatpravicārataḥ/ jāyate cārthasaṃsiddhivyavahārastu yena saḥ// Śukranīti,4.5.4

[19]:

anyavirodhena svātmasaṃbandhitayā kathanaṃ vyavahāraḥ/ Mitākṣarā on Yājñavalkyasmṛti,2.1

[20]:

Kane, P.V. and Patwardhan,S.G.(Edited and trans.), Vyavahāramayūkhaḥ of Nīlakaṇṭha, page161