Vyavahāra

Vyavahāra, “legal procedure”

Smṛti has other meanings too: see all meanings of Smṛti.

Vyavahāra means legal procedure and the settling of disputes. It is a part of rājadharma (the duties of a king) and covers lawsuits, courts, the giving of evidence, trials, debt, inheritance and punishment. The Agni Purāṇa gives one of the most orderly accounts of traditional Indian law in six chapters (Chapters 253 to 258).

These chapters cover the eighteen kinds of lawsuit, how a court works, the rules for witnesses, trial by ordeal (divya-pramāṇa), the law of inheritance (dāya-vibhāga), disputes over boundaries, and insulting speech.

Agni Deva teaches vyavahāra to Vasishṭha Maharshi in order. Chapters 253 and 254 give its parts, the eighteen titles of dispute, the hearing of a case, the proofs, possession and title, interest, debts, sureties, pledges and deposits. Chapter 255 gives the witnesses, the written document and the five divine proofs: the balance, fire, water, poison and the sacred water. Chapter 256 gives the partition of inheritance, the kinds of sons and the woman’s own wealth (strīdhana). Chapter 257 gives boundary disputes, damage by cattle, lost and stolen goods, gifts, the trial period for things bought, release from servitude, the rules of guilds and communities, wages and gambling. Chapter 258 closes the teaching with the fines and punishments for insult, assault, fraud in trade, theft, adultery and offences against the king. It ends with a promise: the king who sees to the dealings of his people by dharma gains seven goods, and a lasting place in svarga (the world of the devas). When the Agni Purāṇa counts its own subjects at its close, vyavahāra is among them (Chapter 383).

The Setting and Purpose

In the Agni Purāṇa, the teaching on vyavahāra is given by Agni-deva to Vasishṭha Ṛshi. The main purpose of vyavahāra is viveka, telling apart naya (right conduct) from anaya (wrong conduct).

The text says that vyavahāra has:

• four caraṇas (foundations)
• four sthānas (stations)
• four sādhanas (means)
• benefit for four kinds of people
• eighteen padāni (kinds of dispute)
• one hundred sub-branches
• three yonis (origins)
• two abhiyogas (kinds of accusation)
• two dvāras (approaches)
• two gatis (outcomes)

Agni Deva explains these numbers. Vyavahāra is achieved by four means, sāma, dāna, bheda and daṇḍa (conciliation, gifts, division and punishment), so it is catuḥ-sādhana. It stands one foot each on four: the accuser (abhiyoktā), the witness (sākshī), the members of the court (sabhāsads) and the king, so it is catur-vyāpī, “pervading four”. It increases four things, dharma, artha (wealth), yaśas (fame) and the love of the people, so it is catush-kārī, “doing four”. It has two kinds of charge: śaṅkābhiyoga, a charge on suspicion, which arises from keeping company with wicked men, and tattvābhiyoga, a charge on fact, which arises from seeing fitting proofs. It has two doors, the side of the one who brings the charge and the side of the one charged. It has two paths, what truly happened and kapaṭa (deceit).

The Four Foundations of Vyavahāra

1. Dharma, sacred law; it rests on satya (truth)
2. Vyavahāra, settled custom and legal procedure; it rests on sākshya (testimony and evidence)
3. Caritra, customary practice set by past cases; it rests on paurusha-saṃgraha (the agreed view of the people)
4. Rāja-śāsana, a royal decree; it rests on the rājājñā (the king’s command)

Each later one is used when the earlier one is not enough, so they rise in order of authority. When the Arthaśāstra (the science of statecraft) and the Dharmaśāstra (sacred law) disagree, the Dharmaśāstra is declared to be stronger (balīyas). This is the settled view of the ṛshis. When two smṛti sentences or two writings of the Dharmaśāstra disagree, the special rule (viśesha-śāstra) is stronger than the general rule (sāmānya-śāstra).

The judicial process has eight aṅgas (parts):

• rāja-purusha, the royal officer
• sabhāsad, the member of the court
• śāstra, the law books
• gaṇaka, the accountant
• lekhaka, the scribe
• suvarṇa, the one who tests gold
• agni, fire used for ordeals
• jala, water used for ordeals

People get drawn into lawsuits through three urges: kāma (desire), krodha (anger) and lobha (greed).

Source: Agni Purāṇa, Chapter 253

The Eighteen Kinds of Lawsuit

The Agni Purāṇa lists eighteen padāni (kinds) of legal dispute. This is the basic grouping of traditional Indian law.

1. Ṛṇādāna: giving and recovering loans and debts; what may be lent, when, and how repayment is enforced
2. Nikshepa: deposits, meaning money or valuables handed by one person to another for safekeeping
3. Sambhūya-samutthāna: partnership, when merchants and others join together in a shared business
4. Dattāpradānika: gifts not honoured, when a person who has given a gift still claims to own it
5. Abhyupetya-aśuśrūshā: breach of a service agreement, when someone agrees to serve and then does not
6. Vetanādāna / Vetanānapākarma: wage disputes, when agreed wages are not paid to workers
7. Asvāmi-vikraya: sale without the right to sell, such as selling pledged, lost or someone else’s property without the owner knowing
8. Vikrīyāsampradāna: a seller who takes payment but does not hand over the goods
9. Krītānuśaya: a buyer’s regret, when a buyer claims the goods are faulty
10. Samayānapākarma: when one party breaks an agreement or a guild rule (samaya)
11. Kshetraja (Sīmā-vivāda): disputes over fields, irrigation channels, embankments and boundaries
12. Strī-puṃ-yoga: disputes about the union of men and women (marriage and its duties)
13. Dāya-bhāga: dividing an inheritance among sons and heirs
14. Sāhasa: violent or forceful acts done out of arrogance or greater strength
15. Vāk-pārushya: verbal abuse, insult, slander and damaging someone’s name
16. Daṇḍa-pārushya: physical assault with hands, feet, weapons or fire
17. Dyūta: gambling with dice, pieces of leather or ivory rods
18. Prakīrṇaka: breaking a royal order or decree; disobeying the king

These eighteen kinds have, in all, one hundred divisions, which arise from the many deeds of men.

Agni Deva adds a few details to these titles. In krītānuśaya, if the buyer returns the thing to the trader on the same day he bought it, the seller must give back the whole price with nothing taken off. The samaya of samayānapākarma is the settled standing of the pāshaṇḍas (orders outside the Vedic path), the naigamas (merchant bodies) and others. With dyūta he names prāṇi-dyūta, betting with animals and birds. Prakīrṇaka, the breaking of the king’s order and the leaving undone of work he commanded, concerns the king himself.

Source: Agni Purāṇa, Chapter 253

How the Court Works

The king must carry out vyavahāra-vicāra (the hearing of cases) free from krodha (anger), together with learned brāhmaṇas. The sabhāsads (members of the court) must know the Vedas, must look on enemies and friends with equal eyes (sama-dṛshṭi), and must be free from lobha (greed). When the king cannot hear a case himself, he appoints a learned brāhmaṇa to sit with the court members. If the members of the court, from attachment, greed, fear or the like, give a decision against the Dharmaśāstra and good custom, the king fines each of them twice the amount in dispute. The chief judge is the prāḍvivāka; the Purāṇa’s lexicon also calls him the akshadarśaka, “the one who examines the cases” (Chapter 366).

Bringing a case: When someone is harmed against the Dharmaśāstra and ācāra (customary law), he goes to the king. The king has the complaint of the vādin (the one bringing the case) written down in full, with the date (year, month, fortnight and day), name, jāti (community) and other details, in front of the prativādin (the one accused). The accused then gives his uttara (reply) in front of the one bringing the case. At the same time, the one bringing the case must give his pramāṇa (proof). If his proof holds, he wins; if not, he loses.

The written complaint is called bhāshā, pratijñā or paksha. So a case has four pādas (steps): the complaint, the reply, the proof and the decision. The prāḍvivāka (the chief judge), with the members of the court, appoints pratibhūs (sureties) able to answer for both parties. If the accused denies the charge and the one bringing it then proves it by witnesses and other proofs, the accused pays him all that is owed and pays as much again to the king as a fine. If the one bringing the case cannot prove it and is a false accuser, he pays the king twice the sum he claimed.

Some charges must be answered at once: murder, robbery, verbal and physical assault, the theft of milch cows, abhiśāpa (the charge that someone has committed a mahāpātaka, one of the gravest wrongs), danger to life, loss of wealth, and charges about the conduct of a woman. In other disputes, time may be given as the parties, the court and the judge think fit.

When the one bringing the case writes gold, silver, cloth and other things in his complaint and the accused denies them all, and then even one of them is proved, the king makes the accused give all that was written. A thing not written in the complaint at first and added later need not be given. Even when the matter is real, a case that is not in writing ends in defeat. The king gives up all deceit, holds to satya (truth) and decides the case. When the claimant is a wealthy man, only the wealth in dispute is made over to him.

Rules while a case is going on: While a case is in progress, a second charge cannot be brought against the same person, except in cases of violence (hiṃsā and similar). A charge of violence may go ahead even before the earlier case is settled. Some cases are thrown out without any inquiry: cases brought only by women, cases filed at night, cases about things that happened inside a house, cases about things that happened in empty, uninhabited places, and cases that come from the plotting of enemies.

Spotting a liar: The Agni Purāṇa gives a very practical guide to spotting dishonesty in the accuser (abhiyoktā) or in a witness (sākshin). The signs are:

• moving from place to place and not being able to sit still
• licking both lips again and again
• sweating on the forehead
• turning pale
• a shaking voice and unclear words
• speaking in a way that contradicts itself or does not make sense
• not being able to look others in the eye
• twisting the lips

When a person shows these mano-vāk-śarīra vikāras (changes in mind, speech and body) on their own, he is judged dushṭa (dishonest). The signs also include a dry throat and stumbling speech, and not being able to answer others properly. One who tries by any means to prove a doubtful debt that the borrower has denied, and one who can say nothing before the king when he is summoned, is also dushṭa and is punished.

Transactions that do not stand: A transaction made by force or through fear is set aside. A transaction made by one who is drunk or under drugs, maddened by a disorder of vāta, pitta and kapha or by the hold of a graha (a seizing being), sick, stricken with grief, under age, or in fear of enemies, is asiddha (void). So is a case carried on by people who have no connection with the matter.

Stolen wealth: The king gives back to the owner as much of his wealth as was stolen. If the owner cannot identify it, he pays the king as a fine as much as he said was lost. Wealth taken by thieves the king returns to the country (janapada) from which it was taken.

Source: Agni Purāṇa, Chapter 253

Proofs, Possession and Title

There are three mānusha-pramāṇas (human proofs): likhita (a document), bhukti (possession, “enjoying” the thing) and sākshī (a witness). When none of the three is available, one of the divya-pramāṇas (divine proofs) is taken.

In disputes about debt and the like, the later act is stronger: when the later act is proved, the one who answers wins, even if the first claimant has proved his side. But in a pledge (ādhi), a gift received (pratigraha) and a purchase (krīta), the earlier act is stronger.

Āgama and bhoga: A gift received, a purchase and the like, which give ownership, are called āgama (title). Āgama is stronger than bhoga (possession), and possession that rests on title is the proof of ownership. But possession received down the line of father and grandfather is stronger even than title, and a title that was never enjoyed at all has no force. Possession gains its authority from a pure title; where the title is wrong, possession is no proof. One who holds land by title must prove the title by a document or other proof when asked, “How did you get this?” His sons, grandsons and descendants need not prove it: for them, possession handed down is proof. If the holder dies before the case is decided, his heirs must prove the title, because there possession alone is no proof.

Source: Agni Purāṇa, Chapter 253

Debt (Ṛṇa): Detailed Rules

Debt is the first and most common kind of lawsuit, and the Agni Purāṇa gives it a great deal of attention.

Interest (vṛddhi):

• For a loan with security (sa-bandhaka), the interest is one-eightieth of the amount lent, per month
• For a loan without security (a-bandhaka), the rate goes up by varṇa: lowest for brāhmaṇas, then rising step by step for kshatriyas, vaiśyas and śūdras
• When female animals are lent, their young count as the interest
• Liquids (oil, ghee) may grow to eight times the amount lent, but no more
• Cloth may grow to four times, and grain to three times
• For trade through forests the interest is 10 per cent; for sea voyages it is 20 per cent

Gold may grow to twice the amount lent, and no more. Or else people of every jāti, with a pledge or without one, pay the interest agreed between the lender and themselves.

Recovering a loan: When a loan is proved by witnesses, the king does not stand in the way of the lender while he recovers it. One who brings a charge against a lender who is recovering his loan justly is punished by the king and made to pay that wealth.

Order of repayment: A debtor who has borrowed from many lenders repays them in order: first the brāhmaṇa, then the kshatriya, and so on. He is made to pay ten in the hundred on the amount decided, and the lender who gets his wealth back gives five in the hundred to the king. A debtor of low jāti who has fallen on hard times works off the debt; a brāhmaṇa repays slowly, as his means grow. If the lender will not accept the money when it is returned, it is placed with a madhyastha (a neutral person). From that day no interest grows on it, but it must be handed over when the lender asks; if it is not, interest becomes due again.

Proving a debt: If a debtor stands before the king and neither admits nor denies the debt, it can be proved through witnesses and documents. A person who sits before the king and can say nothing is also treated as a defaulter.

Who must pay a dead person’s debt: A person who receives an inheritance from someone who has died must also pay that person’s debts. An adopted son (kṛtrima-putra) who only inherits must also pay the debts. A man who takes another man’s wife also takes on that man’s debts. In a joint family, if one member runs up a debt, the head of the family is responsible. When a father dies or goes abroad, his sons and grandsons must together repay his debts. If they refuse, their property can be seized through evidence and legal process.

A wife need not pay a debt made by her husband, parents need not pay a debt made by their son, and a husband need not pay a debt made by his wife, except a debt made to support the whole family. But the husbands of cowherd women, of women who sell liquor, of actresses, of washerwomen and of hunters’ wives must pay their wives’ debts, because their livelihood depends on those women. A woman pays a debt she made at the urging of a husband about to die or go abroad, a debt made jointly with her husband when there is no husband or son left, and a debt she made herself; no other.

Debts that sons do not have to pay: Debts made for chasing women (strī-lampaṭatva), for gambling, for fines (daṇḍa), for customs duties, or for useless gifts (vṛthā-dāna) do not pass to the next generation. Nor does a debt the father made for drink. For a fine or a toll, it is the balance he left unpaid that the son need not pay. In the undivided wealth of brothers, or of father and sons, a debt of suretyship is not binding.

Time limits: If a landowner watches someone else use his land without objecting for twenty years, the land passes to the user. For movable property the period is ten years. But this time limit does not apply to pledges, boundaries, deposits, shared property, the property of children, royal women, or śrotriyas (Vedic scholars). The Agni Purāṇa also names the wealth of the dull-witted (jaḍas) and the upanidhi (a sealed deposit) among the things that long use cannot take away. One who tries to take such property merely by long use is made to return it to the owner, and the king takes as much again as a fine, or a greater or smaller fine as the taker can bear.

Source: Agni Purāṇa, Chapters 253–254

Sureties, Pledges and Deposits

Sureties (prātibhāvya): A surety (pratibhū) is accepted for three things: darśana (that the debtor will appear), pratyaya (that he can be trusted) and dāna (that the debt will be paid). If a surety for appearance or for trust dies, his sons need not pay the debt; but the debt of a surety for payment must be paid. When there are many sureties for payment, they pay by shares; when each stood surety for the whole, the lender may recover from whichever he wishes. Whatever a surety pays to the lender openly, before all, the debtor must pay the surety twice over. When the pledge proves worthless, the debt is paid by the sons of the one who pledged it.

Pledges (ādhi): When a debt on a pledge has grown to double and the debtor does not pay and redeem the pledge, it becomes the lender’s property. A thing pledged “to be redeemed by such a time” and not redeemed in time also becomes the lender’s. But a garden or the like pledged only for the enjoyment of its fruit is never lost: it stays with its owner. If the lender uses a thing pledged for safe keeping, or if working animals are pledged for use, no interest is charged on them. If the pledge is spoiled or lost, the lender must make it good, except when it is lost by daiva (fate) or by trouble from the king; then the borrower gives another pledge or pays the money with interest. Money lent on good character alone, on trust, is repaid with interest. A debt made with satyaṅkāra (a solemn promise) is repaid double. When the time to redeem comes, the pledge must be given back. If the lender is away, the debtor pays his family and redeems the pledge, or has the interest to that day fixed and leaves the pledge with them; from then on no interest grows. If a lender who has gone to a distant country does not come back in time, the pledge is sold before trustworthy witnesses and the amount due is taken from it. When the debt with interest has grown to double, the debtor pays that much and redeems the pledge.

Deposits (upanidhi): Wealth placed in a box, sealed, and left with another for keeping without saying what it is or how much, is an upanidhi. It must be returned exactly as it was given. If it is lost through the king, through daiva or through thieves, it need not be returned. A keeper who does not return it when asked is made to return it and is fined as much again. One who uses the deposit to make a profit is punished and returns it with the profit. The same rules hold for a thing borrowed for use (yācita), a thing handed over to be passed on to another (anvāhita), a thing left in trust (nyāsa) and an open deposit (nikshepa).

Source: Agni Purāṇa, Chapter 254

Witnesses (Sākshins): Rules for Giving Evidence

Who can be a witness: Tapasvīs (people devoted to austerity), people of good family (kulīna), people given to charity (dāna-śīla), people who speak the truth (satya-vādins), the gentle-hearted, sons of dharmic fathers, and wealthy men. Five or three such people may serve as witnesses. Witnesses may be of the same varṇa as the parties, or of any varṇa in general cases. The Agni Purāṇa adds that a witness should be a dharmātmā (one who lives by dharma), should have sons, and should perform the five great yajñas.

Who cannot be a witness: Women, children, the elderly, gamblers, people under the influence of intoxicants, the insane, the sick, actors and similar performers (naṭas), pāshaṇḍas (those who reject the Veda), cheats, people whose senses are damaged, outcasts (patitas), close friends of either party, anyone with money at stake in the case, helpers of either party, enemies, thieves, the reckless (sāhasikas), known rogues, and people cast off by their relatives. None of these may give evidence. But when both parties agree, even one person with a sound grasp of dharma may be the only witness. In cases of rape, theft, slander or serious assault, anyone at all may be accepted as a witness.

False witness (kūṭa-sākshya): The Agni Purāṇa says that a witness who knows the truth but keeps silent earns the same pāpa as one who lies, and is punished in the same way. A false witness goes to the same lokas (worlds after death) as those who commit the mahāpātakas (the greatest wrongs), those who burn houses, and those who kill women and children. The court is told to warn witnesses formally:

The man you seek to defeat by false evidence will receive all the puṇya (merit) you have gathered over one hundred births.

The witness who will not speak: A witness who will not give his testimony is made by the king to pay the lender the debt, with a tenth added, on the forty-sixth day.

When witnesses differ: When many witnesses disagree, the word of those with good qualities is taken; when the virtuous differ among themselves, the word of the more virtuous. The party whom the witnesses support wins; the one they speak against loses. If some witnesses have spoken first, and afterwards others who are more virtuous, or twice as many, say otherwise, the first become false witnesses. Each false witness is fined twice the amount in dispute; a brāhmaṇa who gives false witness is sent out of the country. One who hides the testimony of others is fined eight times the amount; a brāhmaṇa who does this is sent out of the country. Where the truth would bring death on a person of the varṇas, the witness may even speak untruth.

Written evidence (lekhya): A written document is valid even without witnesses if it is in the party’s own handwriting. Documents gained by force or fraud are not valid. A debt written in a valid document passes down through three generations. When a document is in doubt, it is tested by:

• yukti: whether it is likely, given the situation
• kriyā: the signatures of the witnesses
• cihna: special marks used on it
• sambandha: the relation between the lender and the debtor
• āgama: whether it is likely that they came by such money

By these its śuddhi (soundness) is decided.

Writing a loan document: The lender and the debtor, by agreement, have the loan written on a document before witnesses. It records the year, month, fortnight and day, their names, jāti and gotra, and the names of their friends, kin and fathers. When the writing is done, the debtor signs: “What is written here is accepted by me, son of so-and-so.” Each witness signs in his own hand: “I, so-and-so, son of so-and-so, am witness to this.” If the debtor cannot write, the writer writes before all the witnesses, beginning, “I, son of so-and-so, write this at the request of both,” and then the matter of the document. A thing pledged may be enjoyed by the lender until the loan on it is repaid. If the writer is in another country, or the document is lost, rubbed out, stolen, split, torn or burnt, or is doubtful, a new document is written. Whenever part of the debt is paid, the lender writes the sum on the back of the document and signs it. When the whole debt is paid, the debtor tears up the document or takes a written receipt from the lender. A loan taken before witnesses is repaid before the same witnesses.

Source: Agni Purāṇa, Chapter 255

Divya-Pramāṇa: Trial by Ordeal

When there is no human evidence at all (no witnesses, no documents, no proof of use or possession) and the matter is still in dispute, the court turns to divya, a divine ordeal. The Agni Purāṇa treats the ordeal as divine testimony: its outcome is read as the judgement of Paramātmā himself.

Kinds of ordeal:

1. Tulā (the balance): the accused is weighed against a counterweight
2. Agni (fire): the accused carries a red-hot iron ball in his hands
3. Jala (water): the accused is held under water
4. Visha (poison): the accused drinks poison of the Himālayan kind (śārṅga visha). He first says: “O Visha, you are the son of Brahmā; you stand in satya and dharma. Protect me from this false charge. By truth, become amṛta (nectar) for me.” Then he swallows the poison. If, within the set time, he suffers no harm and digests it safely, he is declared innocent.
5. Kośa (consecrated water): the accused drinks the sacred abhisheka water (water used to bathe a sacred image) of fierce devatās, brought by the court officer. If within fourteen days no terrible disaster falls on him, either from the king or from fate, he is declared śuddha (pure) beyond doubt.

In disputes over large amounts where only a small doubt remains, the accused may instead be made to swear an oath by: satya (truth), vehicles, weapons, cows, seeds, gold, the devas, the feet of the guru, and his own past good deeds (ishṭāpūrta).

When the divine proofs are used: The Dharmaśāstras name these five divine proofs for settling a doubtful matter. They are used when the charge is very grave and the case has reached its last stage, and both parties must agree to the ordeal, or else accept other punishments of body or wealth. In charges of rāja-droha (treason against the king) and mahāpātaka, an ordeal may be taken even before the last stage. For a charge of less than a thousand paṇas (the coin of account), the balance and the poison are not used, except in treason and mahāpātaka. For a thousand paṇas the three beginning with the balance may be used; for less, the sacred water. If the one tested is found pure, the other party pays him fifty paṇas; if he is found at fault, he is punished. Women, boys, the old, the blind, the lame, brāhmaṇas and the sick are tested by the balance alone. For a śūdra, the fire, the water, or seven yavas (barley-grain weights) of poison are laid down.

The one to be tested fasts for a day. The next day at sunrise he bathes with his clothes on, and the ordeal is held before the king and the brāhmaṇas.

The balance: Men skilled in weighing set the accused on one side of the balance and an equal weight on the other, mark the line, and take him down. Then he speaks to the balance:

Sūrya, Candra, Agni, Vāyu, the sky, the earth, the waters, the heart, Yama, day and night, the two sandhyās and Dharma-devatā all know the conduct of men. O Tulā, the devas made you of old as the seat of truth. O auspicious one, speak only the truth and free me from doubt. O Mother, if I have done pāpa, take me down; if I am pure, raise me up.

The fire: The accused rubs grain between his hands. His hands are marked with dye, and seven aśvattha leaves are tied on them with thread. He says: “O Agni Deva, you move within all beings as their witness. Tell truly of my puṇya and pāpa.” A round iron ball of fifty palas, heated red-hot, is placed in his hands, and he walks slowly through seven maṇḍalas, each sixteen aṅgulas (finger-breadths) long. There he lets the ball fall and rubs grain in his hands again. If his hands are not burnt, he is pure. If the ball falls on the way, or any doubt arises, he carries it again.

The water: The water is addressed: “O Varuṇa Deva, you are the purest of the pure. O Purifier, test me who am to be tested, and protect me, the accused, by truth.” A man stands in the water up to his navel. Holding that man’s legs, the accused goes under the water. At that moment one man shoots an arrow, and a swift runner goes and brings it back. If the accused stays under the water until then, he is pure.

The sacred water: The judge worships the ugra devatās (the fierce devatās), brings the water of their abhisheka, tells the accused the charge, and has him drink three palmfuls of it.

Source: Agni Purāṇa, Chapters 253, 255

Dāya-Vibhāga: The Law of Inheritance

The Agni Purāṇa sets out the law of inheritance in a balanced way:

• A father making the dāya-vibhāga (division of property) may give the eldest son a larger share, or divide equally among all his sons. Both are valid.
• Wives who have not received strīdhana (a woman’s own wealth) from the husband’s family or the father-in-law also get a share when the property is divided equally.
• A son who can earn his own living and does not want his father’s wealth must still be given something before he is separated.
• Whatever the father gives out, even if unequal, is dharma-sammata (approved by dharma), because it is the father’s own act.
• After both parents die, the sons divide both the property and the debts equally.
• Daughters divide their mother’s property equally after paying her debts; if there are no daughters, the sons take it.

Property that is not divided: Property a son has earned on his own, and property received as a gift or through marriage, cannot be claimed by the other heirs. Property that brothers have earned together is divided equally among them.

Division among grandsons: Grandsons from different fathers divide their grandfather’s property according to the shares of their fathers.

Strīdhana: A woman’s own wealth is protected. No one else may claim it.

More on partition: Wealth a son has earned without harming his father’s wealth, what came to him through a friend or at his marriage, and what he gained through his learning (vidyā), are not shared with the other heirs. Whatever the mother and father give to one child belongs to that child alone. Family wealth that had been taken away belongs to the one who recovers it. Over land, a fixed grant (nibandha) and goods acquired by the grandfather, the father and the sons have an equal right. A son born of a wife of the same varṇa after the partition is also given a share, from the wealth that can be seen once income and expense have been checked. When the sons divide after the father, the mother too receives an equal share. The married brothers see to the marriage and other saṃskāras (sacraments) of the brothers still unmarried, and the sisters are married off with a quarter share. Sons of a brāhmaṇa by wives of the four varṇas take four, three, two and one shares; the sons of a kshatriya and of a vaiśya likewise take shares by the varṇa of their mothers, a vaiśya’s sons two and one. Wealth that one brother hid and that is found after the partition is divided again equally among all. A son begotten by niyoga on another’s wife, for a man who had no son, is heir to both fathers and offers piṇḍa (the rice-ball offering to the ancestors) to both.

The kinds of sons: The Agni Purāṇa names them in order: the aurasa, born of one’s dharma-patnī (lawful wife); the putrikā-putra (the son of an appointed daughter), equal to the aurasa; the kshetraja, born of one’s wife by another man; the gūḍhaja, born secretly in the house; the kānīna, born of an unmarried maiden, who is counted the son of her father; the paunarbhava, born of a widow; the dattaka, given by his father or mother; the vikrīta, bought from his parents; the kṛtrima, adopted and raised by oneself; the dattātmā, who gave himself; the sahoḍhaja, born when a pregnant woman was married; and the apaviddha, abandoned by his parents and taken in. The text calls these the eleven kinds of sons. When an earlier one is lacking, the next in turn offers the piṇḍa and takes the property. This holds among those of the same jāti. The son of a śūdra by a dāsī (a woman in service) takes a share if his father wishes; after the father’s death his brothers give him half a share, and if there are no brothers and no daughter’s son, he takes everything.

Heirs of one without sons: For one who has none of these sons, the property goes in order to the wife, the daughters, the parents, the brothers, the brothers’ sons, the gotra, the kin, the disciple and the fellow student. This holds for all the varṇas. The property of a vānaprastha, a sannyāsī or a brahmacārī goes in order to the ācārya, the best disciple, the brother in dharma and one of the same āśrama. Whether a brother is born or a brother dies while the brothers live together, the newborn is given a share and the dead brother’s share is taken by the others. A half-brother may take the wealth of a dead brother even if they were not living together.

Those who take no share: The impotent, the patita (one fallen from his varṇa) and his son, the lame, the insane, the dull-witted, the blind and the incurably sick take no share; they are only maintained. Their sons, if free from these defects, take the share. Their daughters are maintained until they are married, and their sonless wives are maintained if they are of good conduct; if unchaste or hostile, they are sent from the house.

What strīdhana is: The woman’s own wealth is what her mother, father, husband and brothers give her; what she receives before the marriage fire; what is given her as a present; what she receives when her husband takes another wife; what her kin give; the śulka (bride-price); and gifts made to her after the marriage. In its teaching on dāna, the Agni Purāṇa also counts six kinds of strīdhana: what she receives at marriage, what is given her with love when she goes to her husband’s house, and what her husband, brother, mother and father give (Chapter 209). If a woman dies without children, her wealth goes to her kin. If she was married by one of the four forms beginning with the brāhma and dies without children, it goes to her husband; if she has children, to her daughters; if she was married by one of the other forms, to her father. A husband who took his wife’s strīdhana in a famine, for a dharmic duty, in illness or in a calamity to the country need not give it back. A man who takes a second wife gives the first wife as much as the new marriage costs, or half that if she has strīdhana. One who promised a maiden and then takes her back is punished and repays all the costs with interest. If the maiden dies before the marriage, the gifts of the bridegroom are recovered from her father after the costs of both are reckoned.

When a partition is in doubt, it is decided from the kinsmen, the kin, the witnesses, the written documents, the houses, the fields and the gifts given at marriage.

Source: Agni Purāṇa, Chapters 209, 256

Sīmā-Vivāda: Boundary Disputes

Disputes over farm fields, water channels and land boundaries make up the kshetraja kind of lawsuit. The Agni Purāṇa says boundaries are fixed by:

• old trees, the natural witnesses of many generations
• water bodies: rivers, tanks, and the courses they have always taken
• roads that have been in use for a long time
• the word of local people who have known the land for a long time

In Chapter 257 Agni Deva gives the full procedure. When a dispute arises over the boundary of a field, the neighbours (sāmantas), the elders, the cowherds, the farmers who live along those boundaries and the forest-dwellers find the boundary by its marks: raised ground, charcoal, husk, trees, embankments, ant-hills, hollows, caityas (sacred trees or shrines) and the like. The neighbours, or four, eight or ten men of the village, wearing red garlands and red clothes, with earth placed on their heads, decide the boundary. If they speak untruth, the king fines each of them the middle fine (madhyama-sāhasa). If there are no marks, the king himself decides. Boundaries of gardens, houses, villages, tanks, pleasure-gardens, devālayas (temples) and rain channels are decided in the same way. Those who remove boundary marks, those who seize a field and those who cross a boundary receive the lowest, the highest and the middle fines.

An embankment that serves many and does only small harm to another’s land, and a well that takes up only a little of a field, are not to be stopped. An embankment built in a field without the owner’s knowledge belongs to the owner of the field, or to the king if the owner is not there. A tiller who leaves land he has ploughed without a crop, or stops others from raising one, gives the owner the crop the land would have borne, and the field is given to another to work. A brāhmaṇa may take grass, firewood and flowers from any field as if it were his own. Between a village and its fields there must be a hundred dhanus (bow-lengths) of open ground, two hundred for a kharvaṭa (a large village) and four hundred for a city; by the wish of the villagers or the king’s order, land is left for the grazing of cows.

Witnesses in boundary cases are questioned in a set way. Suppose two parties dispute a field, and one says, “I received this long ago as a gift and have used it ever since.” That party is the pūrva-vādī (the first claimant). If the other party then says, “Yes, it came to you as a gift, but a certain person bought it from you and gave it to me,” the first party’s claim becomes weak, and the second party’s witnesses are then examined. Whoever wins on the evidence gets the field. Anyone who loses a wager placed on the outcome must pay that amount to the king.

Source: Agni Purāṇa, Chapters 253, 257

Cattle, Lost Goods, Gifts and Sales

Damage by cattle: If a she-buffalo damages a crop, the fine is eight māshas; for a cow, four māshas; goats and sheep are also fined. If the animals eat the crop and then lie down in the field, the fine is doubled. The same fines hold in pasture land, and donkeys and camels are fined like a buffalo. The owner of the cattle gives the owner of the field as much crop as was destroyed. The herdsman is punished by beating; the owner of the cows, if he grazed them there himself, pays the fine. If the field lies by a road or at the edge of the village pasture and cattle graze it unknowingly, there is no fine; if knowingly, the one responsible is punished like a thief. Cattle released in the name of the devatās, a newly calved cow and a stray cow that wandered in are let go without fine, as are cattle struck by fate or by the king. The herdsman must hand the cattle back in the evening just as he took them in the morning. A paid herdsman through whose carelessness cattle die or are lost makes good the loss; if an animal dies through his fault, he pays thirteen and a half paṇas as a fine and the animal’s price to the owner.

Stolen and lost goods: An owner who sees his stolen thing sold to another may take it back. One who buys a thing secretly, at the wrong time, at a low price, or from a low man, is a thief. When a lost or stolen thing is seen, the king’s men seize the one who holds it; if they cannot at that place and time, the owner himself seizes him and hands him over. If the buyer points out the seller, he is cleared: the king gives the thing to its owner, punishes the seller and makes him return the price to the buyer. The owner must prove the thing is his by telling how he came by it and how he used it; if he cannot, he is fined a fifth of its value. One who gets back his stolen or lost thing through others without telling the king is fined ninety-six paṇas. Lost property that customs officers or local guards bring to the king may be claimed by its owner within a year; after a year it belongs to the king. For a recovered stray, the owner gives the king four paṇas for a horse or other single-hoofed animal, five for a person in service, two each for a buffalo, a camel or a cow, and a quarter paṇa for a goat or sheep.

Gifts: One may give away one’s things so long as the family is not harmed. A wife and sons are never to be given away. While one’s line lives on, one’s whole property is not to be given to another. What has been given to one is not to be given to another. A gift is accepted openly, before all. A thing one has promised must surely be given, and having given it one must not take it back.

Trial period for things bought: The buyer may test seeds for ten days, iron for one day, vehicles for five days, gems for seven days, a woman in service for a month, milch animals for three days and a man in service for half a month.

Loss and gain in working metals and cloth: Gold put in the fire does not lessen. Silver loses two palas in a hundred, tin and lead eight, copper five and iron ten. Cloth woven of wool or cotton gains ten palas in a hundred; with thread of middle weight, five; with fine thread, three. Dyed cloth and cloth with hair worked into it may lose thirty parts in a hundred. Silk and bark-fibre cloth neither lose nor gain. For things damaged in a workman’s hands, the king surely has the loss made good as the experts decide it, weighing place, time, use and the strength of the thing.

Source: Agni Purāṇa, Chapter 257

Servitude, Communities and Wages

Release from servitude (dāsya): These are set free: one made a dāsa by force, one sold by thieves, one who saved his master’s life, and one who has paid back to the master what the master spent on him. One who took sannyāsa and fell from it is the king’s dāsa until death. Among the varṇas, servitude goes only in the anuloma order, a lower varṇa serving a higher, never the reverse. A disciple learning a craft lives in his guru’s house for the agreed time, eats from the guru’s kitchen, and gives the guru what his craft earns.

Brāhmaṇas and communities: The king gives a place in his city to brāhmaṇas who know the Vedas, provides their livelihood and asks them: “Perform your own dharma here.” They also keep the rules the king lays down from time to time, where these do not go against their own dharma. One who steals the property of a community or breaks its agreed rules loses all his property and is driven from the realm. What those who seek the community’s welfare say is to be done by all; one who acts against it pays the first fine. One sent on the community’s business who does not hand over all he received pays eleven times as much. Those in charge should know the Veda, be pure, free of greed and careful in the work. These rules hold also for śreṇīs (guilds), naigamas (merchant bodies), pāshaṇḍas and gaṇas (corporate bodies), and the king upholds their own dharmas and their former usage.

Wages: A servant who takes his wage and leaves the work pays his master twice the wage; one who leaves before taking it pays the amount of the wage. The servant looks after the tools. If a master has a servant work without fixing the wage, the king makes him give the servant a tenth of the trade, the cattle or the crop. A servant who spoils the work by letting the place and time go by gets only what the master pleases; one who achieves more than was agreed gets more. Each is paid for the work he does. A carrier who damages goods of the king or of a devatā while carrying them pays their value to the owner. A servant who holds up a journey pays twice his wage. One who quits at the start of the journey pays a seventh of the wage, on the way a fourth, and in the middle of the road the whole wage.

Source: Agni Purāṇa, Chapter 257

Gambling (Dyūta)

When a gambler wins a hundred or more, the sabhika (the keeper of the gaming house) takes a tenth part per hundred from him, and again each time such a gain comes. The sabhika, well protected by the king, gives the king his fixed share, gives the winnings to the winner, is forbearing and speaks only the truth. Only when the company of known gamblers, with the sabhikas, has gone to the king and paid his share does the king make the loser pay the winner. Gamblers themselves are appointed to look into matters of gambling and to bear witness in them. Those who play with false dice are marked on the body and driven from the country. One man is appointed as chief to catch cheats at play. The same rules hold for prāṇi-dyūta, betting with living creatures.

Source: Agni Purāṇa, Chapter 257

Vāk-Pārushya: Verbal Abuse

The Agni Purāṇa sorts out the kinds of verbal offence and sets punishments in keeping with the varṇas of the people involved.

Verbal abuse (vāk-pārushya) includes: speaking of someone’s jāti (community), region or family in an insulting way; saying mocking or scornful words; and using indirect phrases with an insulting meaning (vyaṅgyokti). How heavy the punishment is depends on:

• the varṇa of the one who gave the insult
• the varṇa of the one who was insulted
• the kind and degree of the insult

The fines of Chapter 258 are these. One who taunts a person who lacks a limb or a sense, or who is sick, whether with true words, false words or mocking praise, pays thirteen and a half paṇas. One who abuses another with “I will go to your sister, to your mother” pays twenty-five paṇas: half if the one abused is lower, double if she is another man’s wife or the one abused is a superior. When one of a lower varṇa abuses one of a higher, the fine is two or three times; when one of a higher varṇa abuses one of a lower, it is halved. One who threatens, “I will break your arms, your neck, your eyes, your thighs,” pays a hundred paṇas; for the nose, ears and hands, half. If the one who threatens cannot carry it out, he pays ten paṇas; if he can, he pays the fine and also gives a surety for the safety of the one he threatened. Calling a man patita (fallen) earns the middle fine; accusing him of upapātakas (lesser wrongs), the first fine. Abusing those learned in the Veda, the king or the devatās earns the highest fine. Abusing one’s kinsmen or an association earns the middle fine; abusing a village or a country, the first fine.

In its teaching on the seven rāja-vyasanas (the failings of a king), the Agni Purāṇa uses the same two words for the king’s own faults: harsh speech, which stirs others up and does harm, and harsh punishment (Chapter 241).

Daṇḍa-pārushya (physical assault), whether by hands and feet, by weapons, or by fire that injures another person’s body, is treated as more serious and carries heavier punishments.

When someone has been struck and there are no witnesses, the king examines the charge by the marks of the blow, by reasoning and by the śāstra, and checks whether the complainant made the marks himself. Throwing ashes, mud or dust on another costs ten paṇas; making impure matter or spittle touch him, or kicking him, twenty. These fines are for an equal: double for another man’s wife or a superior, half for one lower. If it is done in bewilderment or intoxication, there is no fine. With whatever limb a non-brāhmaṇa hurts a brāhmaṇa, that limb is cut off. Raising a weapon to kill a brāhmaṇa earns the first fine; touching the weapon for that purpose, half. Raising the hand or the foot to strike costs ten and twenty paṇas; when people fall to fighting one another, all of them pay the middle fine. Dragging a person by the foot, hair, cloth or hands costs ten paṇas; causing pain, dragging, wrapping him in a cloth or kicking him, a hundred. Striking with wood and the like costs thirty-two paṇas if no blood comes, and double if blood is seen. Breaking hands, feet or teeth, cutting off ears or nose, wounding, beating a man nearly to death, stopping another’s movement, food or speech, hurting the eyes, or breaking the neck, arms or thighs, earns the middle fine. If many strike one man, each pays double. A thing taken in a quarrel is returned with a fine of twice its value, and the one who caused the hurt pays the cost of treatment as well as the fine.

Source: Agni Purāṇa, Chapters 241, 253, 258

Fines and Punishments

The three grades of fine: In the rāja-dharma teaching that Pushkara gives to Paraśurāma, the three sāhasa fines are fixed: the first (prathama) fine is 250 paṇas, the middle (madhyama) fine is 500 paṇas and the highest (uttama) fine is 1,000 paṇas. One who deals unequally with those who deal fairly with him, one who raises prices very high, and a merchant who mixes bad goods with good, pay the middle fine (Chapter 227).

Other fines (Chapter 258): A ferryman who takes a land toll pays ten paṇas. One who, though able, does not invite the brāhmaṇas living nearby to a rite for the devas pays ten paṇas. Striking another’s wall, cracking it, holing it or pulling it down costs five, ten, twenty and thirty-five paṇas. Throwing harmful things into another’s house costs sixteen paṇas; deadly things, the middle fine. Hurting small animals, drawing their blood or cutting their horns costs two, four and eight paṇas; gelding them or killing them earns the middle fine and their price to the owner; for large animals the fines are doubled. Cutting a tree that grows again from its cuttings costs twenty paṇas, and a tree that gives a living, double. One who causes another to commit a sāhasa (an act of violence) pays double the doer’s fine, and one who pays him to do it, four times. Fifty paṇas are fined for abusing those worthy of honour or setting aside their command, striking a brother’s wife, promising and not giving, breaking into an underground room, and harming neighbours or people of good family. A hundred paṇas are fined, among others, for not running to help when people in distress cry out, abusing without cause, swearing oaths wrongly, doing work one has no right to do, cheating in ordinary dealings, and abandoning a father, son, sister, brother, husband, wife, ācārya or disciple who is not fallen. A washerman who wears others’ clothes pays three paṇas; if he sells, hires out or pawns them, ten. One who cheats with the balance, with royal decrees, with measures or with coins, or deals in such false things, pays the highest fine; testers of coin who call good coin bad or bad coin good pay the first fine. A vaidya (physician) who gives false treatment pays the first fine for animals, the middle fine for men and the highest for the king’s men. An officer who binds one who should not be bound, or frees one who should be bound, pays the highest fine. One who steals an eighth part in measure or weight pays twenty-two paṇas. One who mixes poor stuff into medicines, oil, salt, perfume, grain or jaggery for sale pays sixteen paṇas. Craftsmen who join together to lower or raise prices pay a thousand paṇas.

Trade: Merchants buy and sell at the price the king fixes each day. They may take five in the hundred on goods of their own country and ten in the hundred on foreign goods, with the costs of carriage added, so that both seller and buyer gain. A seller who took the price and did not deliver repays with interest, and a buyer from another country is paid the profit he would have made there. Goods the buyer does not take may be sold to another, and any loss is recovered from the first buyer. If goods the buyer asked for but did not receive are spoiled by the king or by fate, the seller bears the loss. Selling one thing twice, or a bad thing as good, earns a fine of twice its value; a merchant who backs out of a purchase pays a sixth part. Partners share profit and loss by the capital each put in or by their first agreement. One who spoils the goods alone, against the others’ wish or by his own carelessness, bears the loss alone; one who saves the goods from danger gets a tenth of them. If a partner goes abroad or dies, his share goes to his heirs and kin, or else to the king; a crooked partner is sent away without his share of the profit. The same rules hold for ṛtviks (priests of a yajña), farmers and workers who work together. The king takes a twentieth of the fixed price as śulka (duty), and may seize goods he has forbidden or goods fit for a king. One who shows a false quantity, slips past the toll-house, or deals by deceit pays eight times the value of the goods.

Theft: The king’s men catch a thief by the stolen goods found with him or by his footprints. One who has offended before, one whose dwelling is not clean, and those who hide their jāti and name may be seized on suspicion. Those given to dice, women and drink, whose face dries up and voice changes when they are questioned, who ask about others’ wealth and houses, who move about secretly, who spend without income, or who sell lost goods, are arrested as thieves. One seized on suspicion who cannot prove himself innocent returns the stolen goods and receives a thief’s punishment. A brāhmaṇa thief is marked on the forehead and banished from the kingdom. If someone in a village is struck or robbed and the offender cannot be traced, the village headman must catch the thief and hand him to the king; if the thief has fled to another village, the headman there must hand him over. Those who steal horses, elephants and the like, and those who kill, are put to death on the stake. The cut-purse loses his thumb, and one who breaks open a box his forefinger; for a second offence, a hand and a foot. One who knowingly gives a thief food, fire, water, help, counsel or money for the road pays the highest fine. Using a weapon on another’s body, or causing a miscarriage, earns the highest fine. One who kills a man or a woman receives the highest or the lowest punishment according to his character and conduct. A woman who kills a man or gives poison is drowned with a stone tied to her neck. A woman who poisons, sets fires, or kills one she should honour or her own children has her hands, nose and ears cut off and is put to death by bulls. Those who burn fields, houses, groves, villages or threshing floors, and one who goes to the king’s wife, are burnt in a fire of chaff.

Offences with women: One who seizes another man’s wife by the hair pays the highest fine if he is of her jāti, and the middle fine if he is of a higher varṇa; if he is of a lower varṇa, he is put to death. One who touches another’s wife improperly, talks with her at a wrong place and time, or sits on one seat with her, is punished for adultery. A woman who keeps talking with such a man after being forbidden pays a hundred paṇas, and the man two hundred. Union with women who were bought, with dāsīs or with kept women costs fifty paṇas. One who goes to a woman of the lowest jāti or to a sannyāsinī is marked on the forehead and driven from the country.

Offences touching the king: One who alters the king’s decree, or lets an adulterer or a thief go free, pays the highest fine, as does one who makes a brāhmaṇa eat forbidden food. One who sells false gold or bad meat loses his limbs and pays the highest fine. An owner who could but does not rescue a man being hurt by his tusked or horned animals pays the first fine, double if the man cries out for help. One who calls an honest man a thief pays five hundred paṇas. One who speaks against the king or reviles him, sells the clothes of the dead, strikes his guru, or reveals the king’s secret counsel has his tongue cut and is banished. One who sits on the king’s vehicle or seat pays the middle fine. One who puts out another’s eyes, carries out the orders of the king’s enemies, or is a śūdra living in the guise of a brāhmaṇa pays eight hundred paṇas. One who has been justly defeated but comes again saying, “I am not defeated,” is defeated again and fined double.

The king’s own duty: If the king imposes a fine unjustly and takes the money, he must offer it to Varuṇa, multiply it thirty times and give it to the brāhmaṇas. The king who sees to the dealings of his people by dharma gains seven goods: dharma, wealth, fame, standing among men, the gathering of wealth, honour among his people, and a lasting dwelling in svarga.

Source: Agni Purāṇa, Chapters 227, 258

Sources

• Agni Purāṇa, Chapters 209, 227, 241, 253–258, 366, 383