Traditional Vyavahāra (Sanskrit: व्यवहार) is an important concept of Hindu law denoting legal procedure.
The term is analyzed by Kātyāyana as follows: "Vi means ‘various,’ ava means ‘doubt,’ hara is ‘removal’; legal procedure is called by the term vyavahāra because ‘it removes various doubts.’”[1] Kane defines it as follows: "When the ramifications of right conduct, that are together called dharma and that can be established with efforts (of various kinds such as truthful speech, etc.)
The other, specific sense is legal procedure, the processes of litigation including a trial.”[3] Legal procedure according to the dharmaśāstras includes: court, listening to and assessing witnesses and their testimony, deciding and enforcing punishment, and the pursuit of Justice in the face of Injustice.
Davis later quotes the Nāradasmṛti in an attempt to answer the question why legal procedure came about in the Hindu tradition.
The text states, “When men had dharma as their only focus and were speakers of the truth, there was no legal procedure, no enmity, and no (selfish) conflict.
"[6] Furthermore, “[t]he court-house should be decorated with flowers, statues, paintings, idols of gods and should be furnished with incense, throne or seat (for the king or judge), seeds, fires and water.
"[8] It appears there were no court fees in ancient India, except for fines imposed by the king, and texts such as the Viṣṇudharmasūtra, NāradaSmṛti, Yājñavalkya Smṛti, and Kauṭilya’s Arthaśāstra prescribe rules for payment after a suit was decided.
According to Nārada, "The king is the assistant of the sacred law when two people are engaged in a lawsuit; he should investigate cases accurately, free from affection or hatred.
In the section on laws for the king, the Manu-Smṛti states, “Arranging in this manner for the discharge of all his obligations, he should protect these subjects with care and vigilance.
When bandits abduct from his realm subjects screaming for help, while he and men in his service stand by—he is surely dead, he is not alive.
For a Kṣatriya, the protection of his subjects is the highest Law; the enjoyment of the specified rewards binds the king to this Law.”[11] The king's personal dharma is inextricably linked to legal proceedings and his dharma is determined by the merits and demerits of his subjects, therefore it is crucial he bring about justice.
"[13] The Smṛti of Kātyāyana states that, “ The chief judge and the sabhyas were not to hold conversation in private with any one of the litigants while the suit was pending and if they did so they were liable to be fined.” .
[8] Additionally, a judge were to be banished (1) if they utter injustice, (2) if they live on bribery, or (3) if they betray other people’s confidence.
Additionally, the plaint needs to be written down, with all minute details of the situation recorded, or it is considered invalid.
"[22] The eighteen titles of law include "(i) the first is the non-payment of debts; (ii) deposits; (iii) sale without ownership; (iv) partnerships; (v) delivery and non-delivery of gifts; (vi) non-payment of wages; (vii) breach of contract; (viii) cancellation of a sale or purchase; (ix) disputes between owners and herdsman; (x) the Law on boundary disputes; (xi) verbal assault; (xii) physical assault; (xiii) theft; (xiv) violence; (xv) sexual crimes against women; (xvi) Law concerning husband and wife; (xvii) partition of inheritance; and (xviii) gambling and betting.”[23] The plaint is also sometimes accompanied by a legal wager, or paņa.
In a sense, a wager can be seen as a form of evidence; if a defendant wages his entire estate in his defense, he must be certain of his innocence.
The amount of time given to a defendant to produce his reply is based upon a few things, including when the act in question was committed and the strength of the case.
[28] According to Kātyāna, “[a] reply is not valid when it is not connected with the subject, when it is too concise, when it is too broad, and when it pervades only part of the thesis.”[29] There are four types of reply in Hindu law procedure: A reply by confession is when the defendant agrees with the plaint, i.e. if the plaint is, “You owe me a hundred coins” and the reply is, “Yes I do.”[30] Some argue that a confession makes the plaint invalid; if someone is trying to prove something that the defendant agrees to be true, the plaintiff's statement suffers from the defect of siddha-sādhana (proving what is proved)[30] Others, such as Vācaspati, disagree, arguing that the point of judicial procedure is the establishment of truth, and a plaint responded to with a confession serves this purpose.
Private documents, on the other hand, which include principal civil transactions (partitions, gifts, mortgages, debts, etc.)
It needs to clearly indicate the nature of the subject and describe details of all persons involved and bear the exact date and place of the transaction.
Although texts disagree about how much time someone has to have possession of something before they have ownership of it, the general consensus seems to be three uninterrupted generations.
“Witnesses should swear by gold, silver, a cow, corn, Sũrya, Agni, an elephant’s shoulder, a horse’s back, the box of a chariot, or weapons, or by their son or grandson.
[55] In the ordeal of fire, the person has to walk a certain distance carrying a red-hot iron ball in his hand.
For example, Kātyāyana explains the fines to be given in trials of ordeals: “In case of poison, water, fire, the balance, holy water, rice, and the ordeal by the hot piece of gold, he should inflict fine on the defeated according to the following gradation: a thousand, six hundred, five hundred, four, three, two, and one hundred, and less.”[63] All these aspects of the trial, including the statements of the plaintiff, defendant, witnesses, and decision-maker, should be written down in great detail in a document called a ‘certificate of the decree’ for future judicial reference.