Verse 8.70

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

स्त्रियाऽप्यसम्भावे कार्यं बालेन स्थविरेण वा ।
शिष्येण बन्धुना वाऽपि दासेन भृतकेन वा ॥ ७० ॥

striyā'pyasambhāve kāryaṃ bālena sthavireṇa vā |
śiṣyeṇa bandhunā vā'pi dāsena bhṛtakena vā || 70 ||

In the event of (proper witnesses) not forthcoming, evidence may be given by a woman, by a minor, by an aged person, by a pupil, by a relative, by a slave, or by a servant.—(70)

 

Medhātithi’s commentary (manubhāṣya):

The mention of ‘woman’ thus permits departure from the rule laying down the sex of the witness; that of ‘minor’ and ‘aged person’ that prescribing his age; and that of ‘pupil’ makes an exception in favour of relations in general;—this being mentioned only by way of illustration, indicating the admissibility of persons similarly circumstanced; hence the restrictions regarding caste or position also are not to be strictly observed. But dear friends, or enemies or persons of proved dishonesty.are not admissible in any case; nor any one in whom there is suspicion of the presence of motives for telling a lie, or those who have been found to be unreliable. Those however who have been found to be only slightly unreliable, but otherwise endowed with superior qualifications, may, in some cases, serve as witnesses. On this point we have the following assertion—‘There may be one man among a thousand who would not tell a lie, under the influence of friendship or enmity or some other interested motive.’

In the event of other witnesses not forthcoming, even a woman ‘may give evidence,’—this clause being construed from the preceding verse.

‘Pupil’—indicates tutorial and sacerdotal relationship in general.

‘Relative’—this term makes an exception in favour of what cannot be avoided; the sense being that even though the man may bear some relationship to the parties, if he is not very nearly related, he may be admitted. Hence the cousin, the uncle, the brother-in-law and such other near relatives should not he made witnesses, the name ‘relative’ being, in ordinary usage, applicable to these persons.

‘Slave’—indicates the relation of ownership in general; that is why the master, the teacher and the priest are not to be made witnesses in any kind of suit. The term ‘slave’ stands for the born slave and ‘servant’ for one who serves on wages.

“The minor and others have been excluded on the ground of incapacity,—they are incapable of realising what is evidence, because of their mind being fickle and undeveloped; so that any exception in their favour, oven in connection with emergencies, cannot he right. For certainly even in an emergency they do not acquire the right capacity. In fact, such an exception would he similar to the case where a man having said ‘fresh rice shall not he cooked,’ adds ‘but if there is no fire it shall be cooked?’

There is no force in this objection; as it is in view of these considerations that we have the next verse.—(70)

 

Explanatory notes by Ganganath Jha

This rule refers to the cases contemplated in the preceding verse (Govindarāja and Kullūka),—‘to the last of these cases only’ (Nārāyaṇa).

This verse is quoted in Aparārka (p. 671), which adds that the women and others mentioned here to be admissible as witnesses should be understood to be only such as are free from the disqualifications of being prejudiced or wickedly inclined and so forth.

It is quoted in Smṛtitattva (II, p. 214);—in Parāśaramādhava (Vyavahāra, p. 70);—in Smṛticandrikā (Vyavahāra, p. 181);—and in Kṛtyakalpataru (32a).

 

Comparative notes by various authors

(verses 8.70-72)

Kātyāyana (Aparārka, pp. 670-671).—‘In cases of disobedience of the royal edict, of adultery, of violent crimes, of theft and of assaults,—one should not be particular regarding the admissibility of witnesses. In the case of occurrences within a house, or at night, or outside the village, if a suit is brought forward, the King shall not be very particular regarding the admissibility of witnesses.’

Uśanas (Aparārka, pp. 670-671).—‘A slave, a blind man, a deaf man, women, children, very aged persons and others,—if they are not connected with the parties—may he witnesses in the case of crimes of violence. All those persons who have been declared to he incompetent witnesses may he admitted as witnesses according to the gravity of the case. But even so a child, or a single person, or a woman, or forger, or a relative or an enemy should not be admitted; as they would he found to depose falsely; the child would do it through ignorance, the woman through inherent untruthfulness, the forger by reason of his being a habitual wrong-doer, the relations through their affection, and the enemy as a means of revenge.’

Gautama (13.9).—‘There can be no objection against any witness in a case of criminal hurt.’

Viṣṇu (8.6).—‘In cases of theft, of violence, abuse and assault, and of adultery, the competence of witnesses should not be examined too strictly.’

Yājñavalkya (2.72).—‘All persons may be witnesses in cases of adultery, of theft, of assault and of violent crimes.’

Nārada (1.189).—‘In cases of heinous crime, or robbery, or adultery, or one of the two kinds of assault, he should not enquire too strictly into the character of the witnesses.’

Nārada (1.188).—‘Slaves, impostors and other incompetent witnesses enunciated shall nevertheless be witnesses in suits of especially grave character.’