|3. ''Regulations fro Gurungs and Lamas in Areas East of the Trishuli-River,'' Poush Badi 12, 1867 (December 1810). RRC, vol. 38, 00. 696-97. For a full translation of this document, see Regmi Research Series, Year 11, No. 2, February 1, 1979, p. 22.
4. ''Regulations Relating to Sino-Eating Communities,'' 1862 (1805). RRC, vol. 6, p. 180. For a full translation of this document, see Regmi Research Series, Year 3, No. 2, February 1, 1971, p. 31.
5. ''Royal Order to the Sino-Eating Communities of Pyuthan, Shrawan Sudi 7, 1867 (July 1810). RRC, vol. 39, pp. 312-13.
Regmi Research (Private) Ltd,
Kathmandul: September 1, 1979.
Regmi Research Series
Year 11, No. 9
Mahesh C. Regmi
1. A Debtor's End in Jumla 129
2. Ban on Cow Slaughter in Sulukhumbu 129
3. Restriction on the Use of Opium, 1909 130
4. The Dharmadhikar 132
5. The Role of the Dharmadhikar 136
6. Notification Regarding Transport of
Electric Equipment from Bhimphedi, 1911 139
7. The Baise and Chaubise Principalities 240
Regmi Research (Private) Ltd
Lazimpat, Kathmandu, Nepal
Compiled by Regmi Research (Private) Ltd for private study and research. Not meant for public sale or display.
A Debtor's End in Jumla
Dayaram Simkhada asked his debtor, a Dum boy of twelve of thirteen years of age, who had taken a loan of two rupees, to work as a porter duirnga trip to Tibet. When the boy refused, Dayaram Simkhada beat the boy's mother, and also kicked the boy severely in the neck with shod feet. Unable to bear the agony, the boy jumped into the Karnali river and died.
When the case was referred to the government, it decreed that the creditor was merely entitled to get his money back, not to beat up his bebtors. It, therefore, directed that Dayaram Simkhada be punished and that the loan be cancelled. The nature of the puninshment was not specified, however.
Bhadra Badi 2, 1885 (August 1827).
Regmi Research Collection, vol. 43, p. 120.
Ban on Cow Slaughter in Solukhumbu
The following regulations were promulgated for the Solukhumbu region in November 1805:
1. We have received reports that the inhabitants of Solu, Khumbu, and Chankhu slaughter cows. If this crime is to be punished with death or enslavement, many people will be put to death or enslaved. All persons who are guilty of cow slaughter innce our conquest of that region and their wives, sons, daughters, and bondsmen shall be sold as slaves. If they have committed this crime after Falgun 1860 (February 1804) they shall be sentenced to death or sold as slaves.
2. In the case of persons who are guilty of complicity in the crime of cow slaughter, they and their wives, sons, daughters and bondsmen shall be sold as slaves.
3. People who have neither slaughteed cows nor become accomplices in that crime shall not punished.
4. Lesser punishment shall be inflicted on persons who knowingly visit places where cows are being slaughterd or participate in feasts and other functions (where beef is served).
5. Issue a general notification to the effect that any person who commits the crime of cow slaughter in the future will be sentenced to death or enslavement, and that any person who does not report any such crime committed in any part of that region that has come to his knowledge will also be punished.
6. The inhabitants of villages in Solu, Khumbu and Chankhu shall not slaughter cows. Theys shall also not reduce the amount of revenue that they have been paying so far. Record this arrangement in writing with their consent. The fine collected as chokho-danda for cow slaughter shall be remitted.
7. The inhabitants of Solu, Khumbu, and Chankhu who have been charged with a crime of cow slaughter have recorded a statement to the effect that: ''We are not alone in slaughtering cows; the inhabitants of other villages also have done so. we can make them confessthe crime.'' Conduct inquiries through them as well as on your own initiative, obtain confessions from the accused persons and thus identify the guilty persons, report the matter to us, and take action as ordered.
Marga Badi 9, 1862.
Regmi Research Collection, vol. 6, pp. 663-65.
Restrictions On the Use of
The following law was promulgated under the seal of Prime Minister Chandra Shumshere and Commander-in-Chief Bhim Shumshere in Chaitra 1965 Vikrama (March-April 1909).
The following law in hereby promulgated with the objective of checking the spread of addiction in Nepal (i.e. Kathmandu Valley) and the hill region, and this notification is published accordingly.
Persons who hold stocks of opium in Nepal and the hill region shall report to the police station (Thana) in Kathmandu, and to the district headquarters office (Gounda), and where no such office exitz, to the local court (Adalat) in the districts, within thirty-five days after the publication of this notification, when such stocks will be exhausted. In the future, they shall use opium subject to provisions of the following law. Any person who contravenes theser provisions shall be punished according to law. Complaints regarding such offenses shall be entertained by district headquarters and other offices.
The following law has been enforced to regulate the use of opium in Nepal and the hill region from Baisakh 1, 1966 (April 13, 1909):
1. In the future, no person shall hold stocks of opium for a period exceeding three months, a deal in it, without obtaining a permit from the appropriate district headquarters or other office. In case any person, even after obtaining a permit, contravenes rules relating thereto, or hold stocks of opium for a period exceeding three months, the material shall be confiscated and he shall be punished.
2. Medical practitioners and dealers in medicines may hold stocks of opium not exceeding one dharni each for medicinal purposes after obtaining permits from the appropriate police station, district headquarters office, or court.
3. Persons who are addicted to the use of opium, other then by means of a flame, shall present themselves within a period of three months at the appropriate police station or district headquarters office, sign a bond stipulating that they will gradually renounce the habit during a three year period, and obtain a permit for holding stocks of opium sufficient to last that period at a rate not exceeding 2 masas daily. They shall not give away such opium to others.
4. Except when permits have been issued under Sections 2 and 3, any person who is in possession of stocks of opium must take them elsewhere or sell them within a period of three months after the publication of this notification. No person shall keep opium in his possession after the expiry of that period anywhere in Nepal and the hill region.
5. Medical practitioners must use the opium that they are allowed to keep in their possession under permits only for medical purposes. They shall either dispenses the required quantity themselves to any person who needs it for medical purposes, a write a prescription entitling him to procure the same from a trader. They shall not dispense or arrange for the supply of opium to any person except for medical purposes.
6. On receipt of the prescription, a trader who has obtained a permit to deal in opium shall supply it only to the bearer thereof or to addicts who have obtained permits in the quantity mentioned therein. He shall not supply opium to any other person.
7. Any person who nees to take opium for medical purposes may obtain it from a medical practitioner, or from a trader who has obtained a permit to deal in opium against a prescription issued by a medical practitioner. No other person shall obtain supplies of opium.
8. The chief of the police station or district headquarters office, or else of the court, shall issue permits from his office under his seal after conducting necessary inquiries. In case any person is proved to have acted in contravention of the law, action shall be taken according
to its provisions. Punishment in such cases shall not be inflicted by other offices or local bodies (Amal). They shall only hand over the guilty person to the concerned office.
9. Any person who keeps opium in his possession, or supplies it to others, without obtaining a license, shall be punished with a fine of Rs 500. Any person who procures and akes opium without a permit shall be punished with imprisonment for a term of three months.
10. After the promulgation of this law, no person shall inhale opium through a flame, or otherwise smoke it, or assemble at an opium den. If such a den is raided by the police, and any is arrested and proved to have been guilty of opium-smoking, he shall be sentenced to imprisonment for twelve years if he has inhaled opium through a flame and banished to the Tarai region if he has deliberately assembled at the opium-den.
(The editor is indebted to Dr. Sherry B. Ortner, Department of Anthropology, 221 Angell Hall, University of Muchigan, Ann Arbor, Michigan-48104, U. S. A., for a phot-copy of this printed notification).
(Continued from the August 1979 issue)
42. A Brahman may receive the tika (on his forehead) from the hands of persons belonging to any caste whose touch does not pollute water, including sacred-thread-wearing castes. He may also accept ritual or other gifts of money, food, etc. from such perons. Neither side shall be deemed to have committed an offense if this is done. However, no Brahman may receive the tika, or accept ritual gifts of money, food, etc. on which water has been put by persons belonging to castes whose touch pollutes water, and contamination from whose touch must be purified through the sprinkling of water. If any (Brahman) does so, the gifts shall be confiscated and a fine of twenty rupees shll be imposed. If he does not pay the fine, he shall be imprisoned according to the law. But no offense shall be deemed to have been committed by either side if any person belonging to a caste whose touch pollutes water offers such pure items as foodgains, money, lands and slaves without performing a ritual ceremony (Sankapla) and without putting water on them.
43. If any person belonging to any caste from whom water can be taken receives the tika from the hands of a person belonging an untouchable caste whose touch pollutes water, both of them shall be punished with a fine of five rupees each. The higher-caste person receives the tika shall be granted a writ of patiya on payment of a godan fee of eight annas.
44. A person who falsely claims to belong to the Upadhyaya caste, and lets other take water with which his feet has been washed, shall be imprisoned for six months if he is a Jaisi, and for eighteen months if he belongs to any other caste. Such persons shall not be released before the expiry of their term of imprisonment, even if they offer money in lieu thereof. They shall, however, be released if they pay an amount which is double the payment due therefore.
45. A person who falsely claims to belong to the Upadhyaya caste, and offers the tika ot others, and lets them worship him, shall be imprisoned for four months if he is a Jaisi, and for twelve months if he belongs to any other castes. He shall be released if he pays money in lieu of such imprisonment according to the law.
46. If any person belonging to a sacred-thread-wearing caste takes rice or other food cooked in the kitchen after sunset though it had been cooked in the morning, or after sunrise though it had been cooked the previous evening, or whether or not the cook had stayed in the kitchen, he shall not be deemed to have committed any offense provided no person from whose hands he cannot take cooked rice had touched the kitchen in the meantime. Such person need not obtain a writ of patiya or be punished with a fine. He shall remain in his usual caste.
47. If any person takes rice cooked in milk in a cowshed and brought or kept by a person of equivalent caste, which has been left overnight had touched by a person from whom hands cooked food cannot be taken, he neen not obtain a writ of patiya, or be punsied with a fine. He shall remain in his usual caste.
48. On Saturday, Poush Sudi 1, 1917 Vikrama, the Bhardari Council made the following decision: ''People belonging to the Mecha caste in the Tarai district of Morang take the meat of buffalies, pigs and chicken, hence (people belonging to higher caste) take water from their hands
neither in India nor in our country. The question of whether or not (high-caste people can take) water from the hands of people belonging to the Meche caste was, therefore, discussed at a meeting of the Bhardari Council. The Council has arrived at the decision that inasmuch as in our country (high-caste people can take) water from the hands of Newars, Magars, Gurungs, Bhotes, and Lepches, who take the meat of buffaloes, pigs, chicken, cows and elephants, that in former times water could be taken from the hands of Meches as well, and their children used to work as slaves in the royal palace, that Meches do not take water from the hands of people belonging to untouchable castes and of Muslims, that they worship Shiva as their God and so belong to the Shivamargi sect, therefore, (high-caste people may) take water from their hands.
Accordingly, from today, (high-caste people may) take water from the hands of people belong to the Meche caste. Any person belonging to any Parbate or Tharu caste who does not take water from the hands of Meches shall be punished with a fine of five rupees, and imprisoned according to the law if he does not pay the fine.
50. From now onwards, people belonging to the sacred-thread-wearing Khas caste have been granted the title of Chhetri. In documents, their personal names shall be written first, followed by the clan name and then the title of Chhetri.
51. If a woman who has been sentenced to life imprisonment on the charge of murder, or a man who is immune from capital punishment but who confesses before a court, a police station, or a local body that he is guilty of murder, and has, therefore, been ostracized in respect to water, but has not yet been branded, is granted a writ of patiya, the chief of the court or police station, or the bhardar, of any district headquarters or other office, or the dittha, bichari, amali, dware, mukhiya, or jimmawal who helped them obtain such a writ, or the dharmadhikar who granted the writ, shall be punished with a fine of fifty rupees if he has not taken water or cooked rice from the hands of the guilty person. If he has taken only water, he shall be punished with a fine of sixty rupees and grant a writ of patiya in respect to water. If, nowever, he has taken cooked rice (from the hands of the guilty person), (such official or functionary) shall be punished with a fine of fifty rupees, and degraded to a lower caste after being deprived of his sacred thread if he belongs to a sacred-thread-wearing caste, and without doing so if he belongs to any other caste.
If (such official or functionary) takes cooked rice (from the hands of the guilty person) and lets other persons do so from his own hands without any knowledge of his guilt, his share of the ancestral proeperty shall be confiscated according to the law, and he shall be
degraded to a lower caste after depriving him of his sacred thread if he belongs to a sacred-thread-wearing caste and without doing so if he belongs to any other caste.
If persons presents at the kachahari have willfully taken cooked rice and water from the hands of (such official or functionary) because their chief himself had done so, they shall be punished with a fine of thirty rupees if they have taken only cooked rice, and twenty rupees if they have taken only water, and granted a writ of patiya in respect to cooked rice and water.
If the chief (of the office, Adalat, etc) had not granted a writ of patiya (to the person convicted of murder), and the employees themselves had willfully taken water from the hands of the latter, the person who had taken the inititive in doing so shall be punished with a fine of fifty rupees, while the others shall be punished with a fine of twenty rupees each, and granted a writ of patiya in respect to water. If they have taken cooked rice, the person who had taken the initiative in doing so shall be punished with a fine of fifty rupees, and degraded to a lower caste after being deprived of his sacred thread if he belongs to a sacred-thread-wearing caste, and without doing so if he belongs to any other caste. If he has let other persons thake cooked rice and water from his hands without any knowledge of his guilt, his share of the ancestral property shall be confiscated according to the law, and he shall be degraded to a lower caste after depriving him of his sacred thread if he belongs to a sacred-thread-wearing caste, and without doing os if he belongs to any other caste. If other persons have willfully taken (cooked rice and water) from his hands, they shall not be degraded to a lower caste because the chief culprit has already been punished. Each of them shall be punished with a fine of thirty rupees and granted a writ of patiya in respect to cooked rice. Persons who have taken cooked rice and water (from the hands of the guilty person) without any knowledge of his guilt shall be granted a writ of patiya in respect to cooked rice and water. After the person who has been sentenced to imprisonment for life is arrested, the sentence shall be executed according to the law.
52. If an informer makes the accusation that any person has committed an act which is punishable through degradation of caste status and ostracization in respect to cooked rice, but the latter has not confessed, and in the meantime any person takes cooked rice and water from the hands of the accused, and if, subsequently, the accused confesses his guilt, the person who had taken cooked rice or water from his hands before he had taken cooked rice or water from his hands before he had made the confession shall be punished with a fine of thirty rupees or of ten rupees respectively, and granted a writ of patiya.
(To be continued).
The Role of the Dharmadhikar
Kirkpatrict, in his An Account of the Kingdom of Nepaul, writes:1
The Dhurma-Udhikar is the chief criminal judge, whose business is to pronounce sentence in all cases congnizable by the tribunal, in which he presides on the part of the Rajah, by whom, however, such sentence must be approved before it can be carried into execution. The under judges, in every part of the Kingdom excepting the formed districts, hold their appointments from him, and in most castes they require the seal of his confirmation to render the judgements they pass valid. His Dhurma-dhun, or fees of this department, are said to be very great, and I have reason to think, that it is principally on this account, that he farming governors usually stipulate for the privileges of commissioning their own officers of justice. Most offences, according to the Dhurma Shster (which is the foundation of the civil code of Nepal), being punishable by amercement, and the catalogue of crimes of this description being extremely long, it is easy to conceive that such penalties constitute a considerable source of emolument.
Hamilton2 has similarly recorded that ''if the cause was important, or required severe punishment,'' criminals were punished in consultaion with ''an officer called Dharm' adhikar, or owner of justice, who pointed out the law''. He adds:
There were two kings of fines: Prayaschitta for the neglect of ceremonies, and those inflicted as punishments for crimes. The latter went to the Raja, and do so till. The former went to the Dharm'adhikar, or chancellor; but having been enormously multiplied since the Gorkha government, their amount is devided into eight shares, of which the Raja takes one, the collector (Gomastash) one, the Dharm'adhikari one, and one goes to each of the five families of Brahmans, named Pangre, Pantha, Aryal, Khanal, and Agnidanda.
There were, therefore, two categories of law in Nepal; cannon law and secular law. The administration of canon law was traditionally the responsibility of the Dharmadhikar, whereas courts, officials or functionaried empowered by the government were responsible for the administration of secular law.
The legal system of Nepal thus resembled the Islamic system in many respects. According to one study:
In almost every Islamic country there developed at one time or another the characteristic parallelism of law codes, one the unalterable shar3, the canon (sic) law in the systermization of one of the four
recognized law schools, the other a code of ''secular'' origin, be it that of the conquering Mongols in Persia or a code arising gradually from custom and royal decisions, as in Egypt and Turkey. In practice royal tendency has always been to confine the application of the shar' to matters of personal statute, so as to make the call for restoration of the shar' to full authority over all provinces of the legal life of the community a regular part of the program of conservative reformers.
Islamic influence on Nepal's legal system is apparent also from the fact that writs issued by the Dharmadhikar were known as patiya. The term is obviously a corrupt form of the Arabic fatwa, meaning ''a religious injunction, or an order issued in writing by a person versed in canon law''.4 The term has also been defined as ''a judicial sentence, a judgement; but more usually applied to the written opinion of the Mohanmadan law officer of a court''.5 However, inasmuch as in Nepal writs of patiya were issued only in the name of the Dharmadhikar, there seems little doubt that the term was used synonymously with the Arabic fatwa to mean ''a religious injunction''.
It is also significant that Hindu India, at least in recent times, did not have a statutory religious authority such as the Dharmadhikar of Nepal. indeed, the Dharmadhikars in India were primarily caste functionaries with no claim to statutory authority. According to one study:6
In some castes in northern India there is a regular official, no doubt normally if not always a Brahman in this case, who is called (dharmadhikari ('religious preceptor'), whose duty it is to fix the punishment and who, in Garhwal at any rate, purifies the out-castes for readmission to caste.
The functions of the Dharmadhikar were defined for the first time in the 1854 legal Code (A full translation of this law is being published serially in the Regmi Research Series). The following account, therefore, relates to the situation existing before 1854. The main function of the Dharmadhikar was to grant expiation for offenses against sexual morality. These offenses included prohibited sexual intercourse7, commensal relations out of ignorance with persons guilty of murder8, or taking water from the hands of women who were guilty of sexual intercourse with men of lower caste.9
1. W. Kirkpatrict, An Account of the Kingdom of Nepaul. (Reprint of 1811 ed.), New Delhi: Manjusri Publising House, 1969, p. 201.
2. Francis (Buchanan) Hamilton: An Account of the Kingdom of Nepal. (Reprint of 1819 ed.), New Delhi: Manjusri Publising House, 1971. p. 102.