Vyavahāra and Vyavahārapada

The word ‘ vyavahara ’ is defined by several smritis and commentators.

Katyayana gives two definitions, one based on etymology and referring
principally to procedure and the other giving the conventional sense
having in view a dispute. The Upsarga ‘vi’ is employed in the sense of “
various “ , ‘ava’ in the sense of “ doubt “, ‘hara’ means ‘ removing ’.
According to Kulluka’s commentary on Manu, Vyavahara is called so
because of its function of removing various doubts. This definition places
the administration of justice on a high plane. The purpose of all branches
of Indian philosophy is the quest of Truth or Reality. The purpose of legal
procedure is, according to Kat , the same that is to find out the truth when
there is a dispute.
Sage Harita declares vyavahara as the regaining of one’s wealth (taken
away by another) that is secured back with the help of proof . Mitakshra
on Yajnavalkya and the Vyavaharamayukha give similar explanations.

The word vyavahara is used in several senses in the sutras and smritis.
One meaning of vyavahara is ‘ transaction or dealing ’ as used in
Udyogaparva and Apastamba-dharmasutra. It also means ‘a dispute or a
lawsuit’ in Vasistha and Vishnu Dharmasutra. A third sense is ' legal
capacity to enter into transactions’ as in Gautama-Dharmaśāstra: -
Raksed rājā bālānām dhananyaprātavyavakārānām.
A fourth but a rare sense is ‘ the means of deciding a matter ’ as in
Gautama-Dharmaśāstra : -
tasya vyavahāro vedo dharmaśāstrānyangāni.
In the modern sense, as defined by Pandurang Vaman Kane in his book
the History of Dhamaśāstra, the word vyavahara is taken to mean ‘law-
suit or dispute in a court ’ and ' legal procedure'. This sense is very
ancient and is found in the Delhi-Topra Pillar Edict No. 1 of Aśoka where
we have the word viyohālasamatā’ (vyavahārasamatā) and the word '
vyavahāravidhi ’ occurs in Kharavela’s Hathigumpha Inscription. ‘
Vohārika-mahāmatta ’ (vyāvahārika-mahāmātra, minister of justice )
occurs in the Mahavagga and Chullavagga. In the medieval digests, both
law and procedure are sometimes dealt with in one book as in the
Vyavahāra-nirnaya of Varadarāja and the Vyavahāra-mayūkha,
sometimes the title of law are treated of in one work and judicial
procedure in another. For example, Candeśvara composed the
Vivādaratnakara (on titles of law ) and Vyavahāraratnākara ( on judicial
procedure ).
The word vyavāhara is restricted in some works to judicial procedure
alone (as in the Vyavahāramātrkā of Jimūtavāhana and the
Vyavahāratattva of Raghunandana). The word vivāda which means
dispute is often used as a synonym for vyavāhara in the sense of law-suit
or legal procedure or both However Yajnavalkya appears to distinguish
between vivāda (law-suit) and vyavāhara (judicial procedure).
The Mitakshra on Yajnavalkya says that protecting the subjects is the
highest duty of a king and that duty cannot be discharged without
eradicating and punishing the wicked, and that requires the king should
administer justice ( vyavaharadarsana ).

Manu personifies the administration of justice as Dharma incarnate by

representing that when justice is administered the dart of adharma or
falsehood by which dharma is pierced is taken out from the body of
Dharma. Yajnvalkya declares that the impartial administration of justice
yields the same rewards as solemn vedic sacrifices do.
Manu declares that a king who punishes those that do not deserve to be
punished and who does not punish those that deserve punishment and
goes to hell. Vashistha prescribes one day’s fast for the king and three
‘days’ fast for the purohita when the King lets off those that deserve
punishment and three days fast for the king and the krcchrn penance for
the purohita when the King punishes the innocent. The Mahabrata and
Ramayana say that if a king intent on pleasures does not show himself to
litigants who approach him for decision, he would suffer like king Nrga. In
the Ramayana, king Nrga is said to have been cursed to become a
chameleon for a long period by two brahmanas who had a dispute about
the ownership of a cow and could not see the king for many days.
Megasthenes says the king remains the whole day in court without
allowing the business to be interrupted. Kautilya gives the advice that,
when in court, the king should not cause petitioners or litigants to wait
long at the door, for when a king makes himself inaccessible, those who
are near him create confusion about what should or should not be done,
whereby the king creates disaffection among his subjects and makes
himself a prey to his foes. The king’s court of justice was called
dharinasthana (SankhaLikhita), dharmasana or dharmadhikarana.The
place where the decision of the truth of the complaint iis carried on by a
consideration of the rules of the sacred law is called the
dharmadhikarana( the Hall of Justice ) says Katyayana Kalidasa
( Sakuntala V) and Bhavabhuti ( Uttararanacarita 1 ) employ the word
dharmasana.
Brahaspati smriti says that in bygone ages men were pre-eminently
virtuous and free from cruel tendencies ; now that men are overwhelmed
by greed and hatred, judicial procedure has to be declared.

A vyavaharapada means ‘the topic or subject matter of litigation or

dispute’. It is the same thing as ‘vivadapada' - which word occurs also in
Arthashastra and in Narada Dharmasutra. Manu shows that ‘pada ’
means ‘ sthana ’. Yajnavalkya defines it as ' If a person, who is wronged
by others in a manner that is opposed to the rules of smrti and to good
usage or conventions, informs the king (or his judge), that is a
vyavaharapada. From very ancient times eighteen vyavaharapadas have
been enumerated. The underlying idea is that most of the disputes
between men can be classified under 18 heads. There is some difference
about the number and nomenclature of the vyavaharapadas among Manu
and other writers of smrtis-Kautilya, Brhaspati,Narada,Yajnavalkya. All do
not mention them in the same order as in Manu. For example, the order in
Yajnavalkya rnadana, upanidhi, dayavibhaga, slma-vivada,
svamipalavivada, asvami-vikraya & others. Yajnavalkya does not
enumerate all of them in one place like Manu and Narada do.
Strīdhana
Stridhana (stri, meaning women, and dhan, meaning fortune or property in
Sanskrit) literally means property of a woman. The Manusmriti first used
the term stridhan to denote portions of property that can be owned by
women alone. The Sanskrit saying "Na stri swatantramarhati
Swatrantam Na Kachit Striyah' meant that women were unfit for any
independent existence and was the rule of ancient Hindu society. A
woman was considered less than fully human, an object to be preserved
by her male guardians. Even though the Puranas, the mythological stories
passed on from the time of Krishna, described Goddesses as Shakti
(Goddess of universal power), Mahalakhshmi (Goddess of wealth), and
Mahasaraswati, (Goddess of knowledge), mortal women were placed
below the status of Sudra, the lowest varnas of Hindu society. The ancient
scriptures never mention any property for an unmarried woman. However,
when she married, a woman could possess a limited range of property,
called stridhan, which she received at the time of her marriage and could
include movable assets such as jewelry, clothes, utensils or cattle. In
some rare cases immovable assets, such as landed property, were also
given as stridhan. Nevertheless, a woman was never the absolute owner
of her stridhan, because, as mentioned before, the Manusmriti taught that
a wife along with her property belongs to her husband. These ancient
texts never properly defined the term stridhan; its characteristics were
never specified and the succession rule was not clear. This began to
change, however, with the emergence of different schools of Hindu law.
Ancient Hindu sages added various Smritis and Srutis (respectively,
nonrevealed and revealed texts) to the Vedic literature, many dealing
explicitly with issues of property and women's rights regarding it.' While
these commentaries on the Smriti and Shruti were being written, different
schools of thought arose in different parts of the Indian subcontinent, and
these schools laid down several rules and principles for marriage and
inheritance. The Mitakhshara and the Dayabhaga were the most
prominent schools, each of them based on a different interpretation of
Yagnavalkya Smriti.
The Dayabhaga School differed considerably; therefore, from the
Mitakhshara School on the question of a woman's standing as property
owner. Still, this more liberal policy had well-defined limits. For instance,
women were not absolute owners of the property inherited from their male
ancestors, because they could sell the property only for limited legal
necessities and not for other reasons. On the death of the woman who
had no sons, such property did not pass to her female heirs but to the
nearest male heir of the deceased male owner and not to the heirs of the
deceased. Another difference between the Mitakhshara and Dayabhaga
schools was the extent to which the Dayabhaga School divided women
into five categories that determined priority in inheritance cases. These
are wife, daughter, mother, father's mother and father's father's mother.
The Mitakhshara School did not recognize women's right to inherit
property from her husband's family. Accordingly, a woman could possess
only stridhan, whose technical and legal meanings the Mitakhshara
School expanded to include nine types:
(1) gifts and bequests from relations;
(2) gifts and bequests from strangers;
(3) property acquired by self exertion and mechanical arts;
(4) property purchased with stridhan;
(5) property acquired by compromise;
(6) property obtained by adverse possession;
(7) property obtained in lieu of maintenance;
(8) property obtained by inheritance; and
(9) share obtained by partition.
However, even though the first seven types were recognized and
established as different forms of stridhan, the last two remained
controversial until the early twentieth century.
Thus we can see that with the passage of time the concept of Stridhan
develops into two distinct categories of rights over the property, the one
being full ownership, including the right to alienation and the other being
limited, excluding the right to alienate. The two leading schools of Hindu
thought clearly regarded stridhan as a women's "own property." But not all
stridhan was out of reach of male claimants. Stridhan was divided into two
types:
1) the sauadayika, which she received as gifts from relatives of both sides
(parents and husband), and which she acquired by self exertion and
mechanical arts during her maidenhood or widowhood, over which she
had full rights of disposal, and
2) the non-sauadayika, which included gifts from strangers and property
acquired by self-exertion, mechanical art, and so forth as a married
woman, over which she had no right of alienation without the consent of
her husband. Her husband also had the power to use it. However, upon
her death all types of stridhan would pass over to her own heirs.
Other sources help to complete the picture of ancient Hindu women's
property rights. The Dharma Shastra-Sanskrit texts pertaining to Hindu
religious and legal duty-says that the wife of an absent manager, or the
widow of a dead manager, can alienate or transfer family property
belonging to numerous minors who are unable to enter into contractual
relationships in their own persons, especially in situations that call for
maintaining dependents and carrying out the various obligations of the
family. Katyana,Smritichandrika, Bhavasvamin, and Yagnavalkya Smriti
also support this right. However, what is clear from the Dharma Shastra is
that women were considered to be managers in cases only of distress and
never had the power to manage property by themselves for their own
purposes.