Report No. 28

29. Arguments against special oaths.-First, in the present-day India, our system of law hardly contains any precepts or injunctions laid down in our ancient codes and shastras. Neither in the field of substantive law, nor in the field of adjective law, are we governed today by the ancient texts or the commentaries thereon. A special oath is in the nature of an ordeal, and any ordeal, whether it be an ordeal by fire or an ordeal by water or an ordeal in any other form, ceased to be a part of our living law, long long ago.

30. In the next place, though special oaths might have been in vogue in Hindu India under the Dharmasastra School1, it may be mentioned that in earlier times under the Arthasastra School, it was not necessary to administer oaths in many cases2.

1. Para. 28, supra.

2. See Dr. K.P. Jayaswal, Manu and Yajnavalkya, 1917). (1930 Edn.), p. 133, para. 9.

31. It is, no doubt, true that in some of the old Regulations there were provisions similar to those contained in sections 8 to 12 of the Indian Oaths Act, 1873. Thus, provisions regarding special oaths similar in substance to those under discussion were contained in Madras Regulations No. 3 of 1802, No. 4 of 1816 and No. 6 of 18161. But we find, that even at that distance of time the Sudder Court took exception to these provisions, as is clear from the observations which Muthusami Ayyar, J. made2 with reference to section 3 of Regulation 3 of 1802-

"It is to be observed that by this Regulation the decision of a suit by the oath of one of the parties was expressly recognised if the other party consented to that mode of decision. In their proceedings of the14th December, 1816, the late Sudder Court deprecated the principle of the Regulation and ruled that according to its true construction, a court cannot decide a suit simply upon the oath of one party, even though the other consented to that mode of decision."

It is significant, that as early as 150 years ago the Madras Sudder Court deprecated the principle underlying the provisions relating to special oaths and the binding nature of the evidence given thereon.

1. See para. 28, supra.

2. Vasudeva Shanbhog v. Naraina Rai, 1879 ILR 2 Mad 356.