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In connection with the desperado mentioned in this text, the author has not laid down any penalties that should be indicted upon him for committing an act of violence. That has got to be found in the section on ‘Hurt’; it is something over and above it that has been laid down here, in view of his being the ‘worst offender’; as said above (345). — (351)

Explanatory notes by Ganganath Jha:

This verse is quoted in Mitākṣarā (2.286) as permitting the wielding of weapons by the Brāhmaṇas; — in Nītimayūkha (p. 77); — and in Prāyaścittaviveka (p. 60), which explains the last clause to mean that ‘the case is not that of one man killing another, but the animosity of one man (the killer) destroying the animosity of another (the killed);’ it adds Vaśiṣṭha’s definition of the ātatāyin — ‘one who sets fire to houses, or administers poison, or who is going to strike with a weapon, or who robs one of his property, or who takes forcible possession of one’s fields, or of one’s wife, — these six are ātatāyins.’

Comparative notes by various authors:

(verses 8.350-351)

See Comparative notes for Verse 8.350.

VERSE 8.352 [Adultery]

Section XLVI - Adultery

परदाराभिमर्शेषु प्रवृत्तान्नॄन् महीपतिः ।
उद्वेजनकरैर्दण्डैश्छिन्नयित्वा प्रवासयेत् ॥३५२॥

paradārābhimarśeṣu pravṛttānnṝn mahīpatiḥ |
udvejanakarairdaṇḍaiśchinnayitvā pravāsayet ||352||

Those men who are addicted to intercourse with the wives of other men, the king shall banish after having branded them with terror-inspiring punishments. — (352)

Medhātithi’s commentary (manubhāṣya):

The term ‘wife’ is applied to the woman who has gone through the sacrament of marriage.

Persons other than one’s own self are called ‘others.’

‘Intercourse’ here stands for carnal enjoyment, consisting in embracing and other acts. ‘Embracing’ — consisting in the two parties coming together in close contact, — the cultivating of the feeling of pleasure caused by mutual union, — the sending of messengers and so forth, — and the actual sexual act, — all these are included under the term ‘abhimarṣa,’ ‘intercourse.’

The meaning thus comes to be this: — When the king finds that a certain man is addicted to having intercourse with the wife of another person, — he should ‘brand’ him, — by cutting off his nose, for instance, — by means of ‘terror-inspiring’ — sharp-edged weapons, — and then ‘banish’ him.

In as much as penalties in connection with each detailed act hare been laid down elsewhere, the present verse should be taken as referring, not to a single act, but to repeated acts; and the right thing appears to be that the ‘banishment’ here prescribed, — which is not applicable to any other act — has to be inflicted along with a fine in money, the purpose served by which is wholly different. All this we shall explain later on. — (352).

Explanatory notes by Ganganath Jha:

This verse is quoted in Aparārka (p. 853); — in Vivādaratnākara (p. 388); — and in Vivādacintāmaṇi (p. 174), which explains ‘trīn’ (which is its reading for ‘nṛṛn ( nṝn?)’) as ‘persons of the three lower castes, i.e., all except the Brāhmaṇas,’ — and ‘udvejanakaraiḥ’ as the ‘cutting of the ears, nose, and so forth.’

Comparative notes by various authors:

(verses 8.352-353)

Nārada (14.6). — ‘Indecent assault on another man’s wife is called violence of the highest order.’

Nārada (12.60). — ‘When a man meets a woman at a house other than her own, it is held to be Adultery.’

Nārada (12.77). — ‘Let punishment be inflicted by the King on him who has intercourse with a woman intercourse with whom has been forbidden; and let such sinners be purified by performing penances.’

Bṛhaspati (23.9). — ‘For the three grades of adultery, the first, middling and highest fines shall be inflicted respectively; it may be higher in the case of rich men.’

Śaṅkha-Likhita (Vivādaratnākara, p. 388). — ‘All men should adhere strictly to their own wives and to their own functions; — by whatever limb one commits an offence, that limb shall be cut off, or a fine of 8,000 shall be inflicted.’

VERSE 8.353

Section XLVI - Adultery

तत्समुत्थो हि लोकस्य जायते वर्णसङ्करः ।
येन मूलहरोऽधर्मः सर्वनाशाय कल्पते ॥३५३॥

tatsamuttho hi lokasya jāyate varṇasaṅkaraḥ |
yena mūlaharo'dharmaḥ sarvanāśāya kalpate ||353||

For out of that arises the admixture of castes among people; — whence follows root-rending unrighteousness, tending to total destruction. — (353)

Medhātithi’s commentary (manubhāṣya):

‘Arising’ means coming into existence, ‘out of that’ — i.e., from the act of having intercourse with the wives of other men, — there arises — ‘admixture of castes’ — in the form of ‘half-castes’; — ‘whence’ — i.e., on account of whoso coming into existence, — ‘follows unrighteousness,’ which ‘rends’ — destroys — the very ‘root’ — of the people, — in the form of rain from heaven. It is only when righteousness prevails that rain proceeds from the sun. When, on the other hand, the world becomes full of ‘half-castes,’ such righteous acts as the Rārlri sacrifice or gifts to proper men and the like cease to be performed; thus there being absence of gifts, sacrifices, oblations and the like, — which form the source out of which all corn is produced, — the said unrighteousness becomes capable of bringing ruin to the entire world.

For this reason, taking into consideration the fact that the act would be productive of ‘half-castes,’ and with a view to safeguard the supply of rain necessary for corns and other things, — tho king should always banish adulterers. — (353)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 388); — and in Aparārka (p. 854).

Comparative notes by various authors:

(verses 8.352-353)

See Comparative notes for Verse 8.352.

VERSE 8.354

Section XLVI - Adultery

परस्य पत्न्या पुरुषः सम्भाषां योजयन् रहः ।
पूर्वमाक्षारितो दोषैः प्राप्नुयात् पूर्वसाहसम् ॥३५४॥

parasya patnyā puruṣaḥ sambhāṣāṃ yojayan rahaḥ |
pūrvamākṣārito doṣaiḥ prāpnuyāt pūrvasāhasam ||354||

A man who engages in secret conversation with the wife of another person, — if he is one who has been previously accused of similar offences, — should receive the penalty of the ‘first amercement.’ — (354)

Medhātithi’s commentary (manubhāṣya):

‘Conversation’ — talking; one who is found to be doing this; — if he happens to be one who has been ‘previously accused of’ — blamed for committing — ‘such offences’ — of having a love-intrigue with that woman, — i.e., if the man is of unsteady character, and has been already seen to be carrying on an intrigue with her, — or has been suspected of doing so; — ‘secretly,’ — in some secret place, or (as some people explain) in a place where such conversation is forbidden; — in the case of such a person, even if the conversation held with another’s wife be one bearing upon some business, be should be made to pay the ‘first amercement.’ — (354)

Explanatory notes by Ganganath Jha:

This verse is quoted in Aparārka (p. 854); — in Vivādaratnākara (p. 384), which addṣ the following notes: — ‘Pūrvamakṣāritaḥ’, already previously suspected of entertaining longings for that lady; — the punishment is to be inflicted only in a case where the conversation is not held under circumstances unfavourable to intercourse; — and in Vīramitrodaya (Vyavahāra, 156a), which explains ‘doṣaiḥ’ as ‘tendency to run after women,’ and adds that this refers to cases where the conversation is held with evil intentions.

It is quoted in Vyavahāramayūkha (p. 106), as laying down the penalty for a man of wicked character holding conversation with another man’s wife; — and in Vivādacintāmaṇi (p. 172), which explains the meaning to be that ‘if a man who has been once suspected of illicit connection with a woman should meet her in private and talk to her longer than ordinary courtesy demands, he should be punished with the first amercement.’

Comparative notes by various authors:

(verses 8.354-355)

Āpastamba (2-26.18-19). — ‘A young man who, decked with ornaments, enters unintentionally a place where a married woman or a maiden sits, must be reprimanded; — if he does it intentionally, with an evil purpose, ho must he fined.’

Yājñavalkya (2.284). — ‘If a man converses with a woman at improper times or places, — or if he sits with her on the same seat, — this is Adultery .’

Yājñavalkya (2.285). — ‘If a man converses with a woman who has been previously forbidden to do so, the woman shall pay a fine of one hundred and the man of two hundred; — if both have been previously forbidden, the punishment shall be the same as in the case of Adultery.’

Vyāsa (Aparārka, p. 854). — ‘Conversing with a woman at improper times or places, or in a forest, — winking at her and smiling at her, — these constitute the first degree of Adultery.’

Śaṅkha-Likhita (Aparārka, p. 855). — (See under CCCLII-CCCLIII.)

Nārada (12-62). — ‘To meet another man’s wife at an unreasonable hour or place, and to sit, converse or dally with her, — these are the three grades of Adultery.’

Bṛhaspati (23.7). — ‘Sending perfumes, garlands, fruits, wine, food or clothes, — and conversing with her in secret, — is considered an adulterous act of the second degree.’

VERSE 8.355

Section XLVI - Adultery

यस्त्वनाक्षारितः पूर्वमभिभाषते कारणात् ?? ।
न दोषं प्राप्नुयात् किं चिन्न हि तस्य व्यतिक्रमः ॥३५५॥

yastvanākṣāritaḥ pūrvamabhibhāṣate kāraṇāt ?? |
na doṣaṃ prāpnuyāt kiṃ cinna hi tasya vyatikramaḥ ||355||

If, however, he is one who has not been previously accused, and converses with her for some good reason, he does not incur any guilt; as in his case there has been no transgression. — (355)

Medhātithi’s commentary (manubhāṣya):

If however the man is one who has not been previously accused or suspected, and if the conversation is found to be one bearing upon business, then there is no guilt, as in his case there is no transgression.

But even though not previously accused, if he converses without any business, he becomes liable to the aforesaid punishment. — (355)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 384), to the effect that no blame is to be attached to, and no punishment inflicted in a case where a man, not previously suspected, engages in such conversation for other purposes; — in Aparārka, (p. 854), which explains ‘doṣaiḥ’ (which is its reading for ‘pūrvam’) as ‘such improper tendencies as a longing for a particular woman and so forth’; — and in Mitākṣarā (2.284), to the same effect.

Bālambhaṭṭī supplies a full explanation: — ‘If the man is one who has not been suspected of entertaining any improper desire towards a woman, and he engages in conversation with that woman for some purpose, and in the presence of other persons, then he should not be regarded as culpable, since he has done nothing wrong.’

It is quoted in Vivādacintāmaṇi (pp. 172-173) which has the same explanation as the one just stated.

Comparative notes by various authors:

(verses 8.354-355)

See Comparative notes for Verse 8.354.

VERSE 8.356

Section XLVI - Adultery

परस्त्रियं योऽभिवदेत् तीर्थेऽरण्ये वनेऽपि वा ।
नदीनां वाऽपि सम्भेदे स सङ्ग्रहणमाप्नुयात् ॥३५६॥

parastriyaṃ yo'bhivadet tīrthe'raṇye vane'pi vā |
nadīnāṃ vā'pi sambhede sa saṅgrahaṇamāpnuyāt ||356||

He who converses with ‘another’s woman’ at a watering place, or in a wilderness, or in a forest, or at the confluence of rivers, — incurs the guilt of ‘adultery.’ — (356)

Medhātithi’s commentary (manubhāṣya):

Though ‘the wife of another man’ has been already mentioned as forming the subject-matter of this suction, the verse contains the term ‘another’s woman,’ with a view to indicate that the prohibition does not apply to one’s own mother or sister or preceptor’s wife or other relations; for though these also are included within the category of ‘the wife of another person,’ yet they are not called ‘another’s woman.’

‘Tīrtha,’ ‘watering place,’ is that place where people go for the purpose of fetching water from rivers, tanks and other reservoirs. Such a place is generally deserted; as none except one desiring water goes near the place; and as a rule it is places like this that are appointed rendezvous for lovers’ meetings, — the understanding being ‘come to such and such a place, where I shall come without being suspected of anything wrong; as people will think that I have been waiting here for getting water or for the purpose of performing my ablutions, etc., while if I were to go to another place, people would suspect why I was waiting there.’ It is for this reason that conversation at watering-places has been forbidden.

‘In a wilderness’ — a deserted spot outside the village; or one that is surrounded by hedges, thickets, trees and creepers.

‘Forest’ — cluster of trees.

‘Confluence of rivers’ — the place where they meet. This also is a place that is generally appointed rendezvous for lovers.

‘He incurs the guilt of adultery’; — ‘adultery’ consists in making love to other people’s wives.

For this reason, the punishment in this case shall be the same as in that of ‘adultery.’ This is what is meant.

This prohibition is applicable also to one who has not been previously accused, as also to one who converses on business.

What Āpastamba has declared that — ‘One should not pass over a woman without accosting her,’ — refers to places where other people are present; and to one of open accosting in the proper form, — such as ‘O sister, I salute thee’ and what is meant is that such salutation should be offered without delay. — (356)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vyavahāra-Bālambhaṭṭī (p. 1002); — and in Vivādacintāmaṇi (p. 173), to the effect that, even though not suspected, if one converses with a woman in secluded places, he is guilty of an offence.

Comparative notes by various authors:

Nārada (12.63). — ‘When a woman and a man have meetings at the confluence of two rivers, at a bathing place, in a garden, or in a park, — this also is called Adultery.’

VERSE 8.357

Section XLVI - Adultery

उपचारक्रिया केलिः स्पर्शो भूषणवाससाम् ।
सह खट्वाऽसनं चैव सर्वं सङ्ग्रहणं स्मृतम् ॥३५७॥

upacārakriyā keliḥ sparśo bhūṣaṇavāsasām |
saha khaṭvā'sanaṃ caiva sarvaṃ saṅgrahaṇaṃ smṛtam ||357||

Offering help, flirting, touching of ornaments and clothes, sitting on the same bed, — all this has been declared to be ‘adultery.’ — (357)

Medhātithi’s commentary (manubhāṣya):

The ‘offering of help,’ — in the shape of clothes, garlands, or articles of food and drink and other things, — to a lady who is not related to one in any way.

‘Flirting’ — joking in ambiguous words, etc.

‘Ornaments,’ — the necklace, the bracelet and so forth, either when all this is actually on her body, or even when held by others, if he touches them, without reason, simply because they belong to that particular lady.

‘Sitting on the same bed,’ — oven without actually touching. All this makes him liable to the same punishment. — (357)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 381), which explains ‘upakārakriyā’ as ‘behaving agreeably,’ — and ‘keli’ as ‘flirtation.’

Comparative notes by various authors:

(verses 8.357-358)

Nārada (12.65-66). — ‘If one touches a woman where she should not be touched, or allows himself to be similarly touched, — all such acts, done with mutual consent are declared to be Adultery. Bestowing attentions on a woman, sporting with her, touching her ornaments or clothes, sitting with her on the same bed, — all such acts are declared to be adulterous.’

Arthaśāstra (p. 175). — ‘Catching hold of each other’s hair is Adultery.’

Bṛhaspati (23.6-8). — ‘Winking at a woman, smiling at her, sending go-betweens to her, touching her ornaments or clothes, — is called Adultery of the first degree. Sending perfumes, garlands, fruits, wine, food or clothes, and conversing with her in secret, are regarded to be adulterous acts of the second degree. Sitting on the same bed, dallying, kissing or embracing each other, — is defined as Adultery of the highest degree.’

Yājñavalkya (2.254). — ‘Touching of the cloth-knot, the cover over her breast, or of her thighs or hair, conversing with her at improper times and places, and sitting with her on the same bed — (all this is Adultery).’

Vyāsa (Aparārka, p. 855). — (Reproduces Manu CCCLVII.)

Do. (Vivādaratnākara, p. 380). — ‘Sending such presents as perfumes and garlands, incense, ornaments and clothes, and tempting her with foods and drinks, — all this they regard as Adultery of the middle degree. Sitting close to each other on the same couch or seat, and catching hold of each other’s hair, — this should be regarded as Adultery of the worst degree.’

Kātyāyana (Vivādaratnākara, p. 382). — ‘Whatever acts a man does with the intention of having intercourse with a woman, all such are declared to he reprehensible, as being conducive to the fulfilment of illicit love. If a man sends presents to the woman, or meets her at unreasonable hours and improper places, or touches her neck or hair or clothes, ears, nose, hands or other parts of the body, — if he sits with her and dines with her on the same seat, — all this has been declared by the sages to be Adultery. All such acts as sending presents of perfumes, garlands and clothes, and sending letters to her, should be regarded as indicative of Adultery.’

VERSE 8.358

Section XLVI - Adultery

स्त्रियं स्पृशेददेशे यः स्पृष्टो वा मर्षयेत् तया ।
परस्परस्यानुमते सर्वं सङ्ग्रहणं स्मृतम् ॥३५८॥

striyaṃ spṛśedadeśe yaḥ spṛṣṭo vā marṣayet tayā |
parasparasyānumate sarvaṃ saṅgrahaṇaṃ smṛtam ||358||

If one touches a woman in an improper place, or condones it when touched by her, — all this, when done with mutual consent, has been declared to be ‘adultery’ — (358)

Medhātithi’s commentary (manubhāṣya):

‘Improper place,’ for touching, would he one where the man could pass along without touching the woman; there would he no harm in large crowds.

Or ‘place’ may stand f or part of the body. There can be no wrong in the man happening to touch the hands, or the shoulder, or the back, when taking down a load from her head: whereas it would be very wrong to touch her lips or chin or breasts and such other parts.

Or, when touched by her, pressed with her breasts for instance, if the man does not resent it, by saying ‘do not do this.’

‘By mutual consent’; — the act is wrong only when done intentionally; and not if he touches her during sacrificial and other performances, — when, for instance, the woman hangs by the neck of the man, or when the man touches the woman between her breasts, or when he touches her when taking something from her hands and so forth. This being due to chance, — just like the case where one desiring to fall back upon dry ground, falls in mud, — the parties incur no guilt at all. — (358)

Comparative notes by various authors:

(verses 8.357-358)

See Comparative notes for Verse 8.357.

VERSE 8.359

Section XLVI - Adultery

अब्राह्मणः सङ्ग्रहणे प्राणान्तं दण्डमर्हति ।
चतुर्णामपि वर्णानां दारा रक्ष्यतमाः सदा ॥३५९॥

abrāhmaṇaḥ saṅgrahaṇe prāṇāntaṃ daṇḍamarhati |
caturṇāmapi varṇānāṃ dārā rakṣyatamāḥ sadā ||359||

In a case of adultery, a non-Brāhmaṇa deserves the penalty ending in death; as the wives of all the four castes are always the most deserving of protection. — (359)

Medhātithi’s commentary (manubhāṣya):

The nature of ‘adultery’ has been defined. Penalties for it are now laid down.

‘A non-Brāhamaṇa’ — the Kṣatriya and other castes.

‘In cases of adultery’ — when adultery has been committed. ‘Of all four castes’ — irrespectively of the high or low caste of the woman concerned.

‘Penalty of death’ — the punishment consisting in striking till death is brought about.

“How is it that the same penalty applies to the case of adultery with a Brāhmaṇa as well as a Śūdra woman?”

The text adds the next sentence by way of answer to this question — ‘For the wives of all castes are the most deserving of protection.’ Whosoever’s wife she may be, she needs to be guarded much more carefully than one’s body and property. Since the ‘admixture of castes’ is the same in both cases, the family of the Śūdra is ruined by it, just as much as that of the Brāhmaṇa.

What is meant by the question is this — “what is found here is a mere assertion; some reason for this should be explained; now what is this reason?”

In answer to this the ancients have offered the following explanation: — The penalty here prescribed is not meant to apply to all forms of ‘adultery,’ but only to that which consists in the chief form of it, consisting in the actual intercourse, which consists in obtaining a sensual pleasure by a particular form of contact. How could the same penalty be inflicted in the case of actual sexual intercourse, as also in that ‘conversing at a watering-place’ and such places (which also has been declared to be a form of ‘adultery’)? Hence the conclusion is that the death-penalty is to be inflicted only in the case of a ‘non-Brāhmaṇa’ — i.e., a Śūdra — committing adultery with a woman of the twice-born castes, — and not in the case of any other person. For it cannot be right to make equal things that are not equal. Hence in the case of the forms of ‘adultery’ described above, the exact penalty has to be determined by the circumstances attending each individual case. For instance, if in a certain case it be found for certain that the ‘offering of help’ and other approaches were made solely with a view to actual sexual intercourse, the right penalty would be the extreme one of death; as the case would not stand upon a different footing; as in both cases the real motive is found to be the same.

It has teen asked — “if the extreme penalty is to be inflicted in the ordinary forms of ‘adultery,’ what would it be in the case of real ‘adultery’?”

But ‘real adultery’ is not something different. The denotation of the term is not to be fixed by ordinary parlance; hence it cannot be right to argue that the extreme penalty is to be inflicted in a case where there is an act which your august self is pleased to call ‘real adultery.’

“Adultery with women has been forbidden; hence the question as to how the same punishment is to be meted out in all cases of it should he addressed to the scriptures.”

But there is similar prohibition regarding the ‘offering of help’ and such other acts also.

“Well, in that case, it would follow that in all cases the same expiatory rite would have to be performed.”

Why should this be regarded as an undesirable contingency? The contingency would certainly arise if the act concerned were spoken of as ‘adultery.’ Though in reality the term is applied only to a case where there has been emission of semen, yet punishments are meant to be deterrent, by reason of their causing pain; hence in the case of such acts as the ‘offering of help’ and the rest, penalty equal to that in the case of actual intercourse has to be inflicted, on the ground that if such acts as ‘conversation’ and the rest were associated with small punishments, then men would he tempted to repeat them; and by frequent conversations with women, their passion would become whetted; so that falling a prey to the arrows of Cupid, they would not mind the small punishments inflicted by the king, and would commit the act even at the risk of their lives. On the other hand, if at the very first approach, the man is met by a severely deterrent punishment, the little acts would not be repeated, and the real act might he averted.

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