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It is for this reason that it has been considered right to inflict a severe punishment upon those who may just begin to make approaches to the wives of other men.

So far as the present verse is concerned, we find the term ‘prāṇānta,’ ‘ending in death,’ — which shows that the beginning of the penalty would be something else; for unless a thing has a beginning, it can have no end. The term ‘ending in death’ means that of which death is the end; i.e., the punishment should go on being inflicted until death comes about. Thus it is that all such punishments as ‘confiscation of property,’ ‘cutting off of limbs’ and so forth become included.

Each of these has been found in other cases to constitute a ‘punishment’ by itself. So that, when a number of punishments have been prescribed, since all these cannot be inflicted for any single crime, the right conclusion is that in the case of a non-Brāhmaṇa committing adultery with a twice-born woman, the highest of those punishments shall be inflicted, and the man shall be put to death. But even in the case of women of lower castes, the death-penalty shall be inflicted in the case of the man committing adultery with an unwilling family-woman whose husband is alive. — (359)

Explanatory notes by Ganganath Jha:

‘Abrāhmaṇaḥ’ — ‘Kṣatriya and the rest’ (misbehaving with a woman of the higher caste) (Medhātithi and Nandana); — ‘Śūdra misbehaving with a Brāhmaṇa woman’ (Kullūka and Rāghavānanda).

This verse is quoted in Vivādaratnākara (p. 388), which says that this refers to the ‘non-Brāhmaṇa’ misbehaving with a woman of a superior caste; — in Vyavahāra-Bālambhaṭṭī (p. 115); — and in Vivādacintāmaṇi (p. 174) as laying down the penalty for one of the lower caste. misbehaving with a woman of the higher caste.

Comparative notes by various authors:

Baudhāyana (2.4.1-2). — ‘Anybody but a Brāhmaṇa shall suffer corporal punishment for Adultery; — the wives of men of all castes must be guarded more carefully than wealth.’

Āpastamba (2.26.20). — ‘If a man has actually committed adultery, his organ shall be cut off together with the testicles.’

Bṛhaspati (23.10-12). — ‘If a man violates an unwilling woman, the King shall confiscate his entire property, have his penis and scrotum cut off and have him paraded on an ass. When a man enjoys a woman by fraud, bis punishment shall be confiscation of his entire wealth; and afterwards he shall be branded with the mark of the female organ and banished from the town. The highest fine shall be inflicted for connexion with a woman of equal caste; half that for connexion with a woman of a lower caste; and a man who has connexion with a woman of a higher caste shall be put to death.’

Kātyāyana (Vivādaratnākara, p. 389). — ‘When a man has completed his intercourse with the woman, by force, the penalty of death shall be inflicted.’

Vyāsa (Vivādaratnākara, p. 392). — ‘If a man has intercourse with a woman who comes to him of her own accord, the punishment shall be half of that in the case of the woman being unwilling.’

Arthaśāstra (p. 172). — ‘A man shall never take liberties with an unwilling woman; if he has illicit intercourse with a willing woman, he shall be fined 50 Paṇas, and the woman, half of that.’

VERSE 8.360

Section XLVI - Adultery

भिक्षुका बन्दिनश्चैव दीक्षिताः कारवस्तथा ।
सम्भाषणं सह स्त्रीभिः कुर्युरप्रतिवारिताः ॥३६०॥

bhikṣukā bandinaścaiva dīkṣitāḥ kāravastathā |
sambhāṣaṇaṃ saha strībhiḥ kuryuraprativāritāḥ ||360||

Mendicants, bards, persons initiated for a rite and craftsmen may converse with women, unchecked. — (360)

Medhātithi’s commentary (manubhāṣya):

‘Mendicants,’ — those living on alms; these may talk to women, in the act of begging, if they are not ‘checked’ by their husbands.

Or, the meaning may be that they shall not be checked or forbidden in this.

‘Bards,’ — those who sing the praises of kings.

‘Initiated at a rite,’ — These persons would have to speak to women in the course of the response that they have to make in acceptance of their appointment.

‘Craftsmen,’ — cooks and others.

These should not be prevented even at such places as the watering-place and the like. — (360)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 386), which adds the following notes ‘Vandinaḥ,’ bards singing the praises of people, — ‘dīkṣitāḥ,’ persons initiated for a sacrificial performance, — ‘kāravaḥ,’ professional artisans; — and in Vyavahāra-Bālambhaṭṭī (p. 1002).

VERSE 8.361

Section XLVI - Adultery

न सम्भाषां परस्त्रीभिः प्रतिषिद्धः समाचरेत् ।
निषिद्धो भाषमाणस्तु सुवर्णं दण्डमर्हति ॥३६१॥

na sambhāṣāṃ parastrībhiḥ pratiṣiddhaḥ samācaret |
niṣiddho bhāṣamāṇastu suvarṇaṃ daṇḍamarhati ||361||

One should not converse with the wives of other men, when forbidden. If, on being forbidden, he does converse, he becomes liable to be fined one ‘suvarṇa.’ — (361)

Medhātithi’s commentary (manubhāṣya):

Some people think that the punishment here laid down is meant for the case where mendicants and the rest first mentioned carry on the conversation, even after being forbidden.

This however is not right. It has been said that these men are not to be forbidden. Then again, how could the fine of a ‘suvarṇa’ be imposed upon a mendicant?

Hence the person meant to be fined one ‘suvarṇa’ is one who, even though not previously accused, has been forbidden by the woman’s husband, and yet goes on conversing with her. — (361)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 386); — in Vyavahāra-Bālambhaṭṭī (p. 1011); — and in Vivādacintāmaṇi (p. 173), which explains ‘niṣiddhaḥ’ as ‘forbidden by the husband or other relatives of the woman.’

Comparative notes by various authors:

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

Matsyapurāṇa (Aparārka, p. 856). — ‘A mendicant male or female, a player, — if these enter the residence of women, after being forbidden, they shall be fined two hundred; and the man who may have admitted them, or who affords them the opportunity for entering, shall be punished like an adulterer.’

VERSE 8.362

Section XLVI - Adultery

नैष चारणदारेषु विधिर्नात्मोपजीविषु ।
सज्जयन्ति हि ते नारीर्निगूढाश्चारयन्ति च ॥३६२॥

naiṣa cāraṇadāreṣu vidhirnātmopajīviṣu |
sajjayanti hi te nārīrnigūḍhāścārayanti ca ||362||

This rule does not apply to the case of the wives of dancers and singers, or of those who make a living of themselves; for these men secretly bring their women into contact (with other men), and tempt them on. — (362)

Medhātithi’s commentary (manubhāṣya):

The aforesaid prohibition regarding conversing with women does not apply to the case of ‘wives of dancers and singers’; — the term ‘cāraṇa’ standing for dancers, singers and other actors.

So also in the case of those ‘who make a living of themselves,’ — i.e., those wives who live upon their own beauty; — the term ‘jīviṣu’ qualifying the masculine noun ‘dārāḥ’ (wives). Or ‘themselves’ may stand for ‘wives,’ — the wife being half the self of the man; and the term stands for those who live upon their wives; — i.e., those who condone the presence of paramours for their wives.

‘Bring into contact,’ — unite their wives with other men.

‘Secretly,’ — i.e., not in the open market-place. These women differ from public prostitutes in this that they carry on their intrigues within their own homes.

‘Tempt them on,’ — eg g them on to actual sexual intercourse; enticing the men by means of glances and jokes.

‘Bringing into contact’ implies connivance, while ‘tempting’ implies leading on to the actual act.

Or, the meaning may be that ‘they bring into contact, unite, their own wives, and seduce, through their wives, the wives of other men’; i.e., they make their wives act as prostitutes as well as go-betweens. — (362)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 387), which adds the following notes: — In the case of the wives of Cāraṇas and other people of that class, and also in that of the wives of those who make a living by ‘their own’ (wife’s beauty), — the aforesaid rule prohibiting conversation, or that prescribing the punishment for conversing, does not apply, — because it is the business of these people to help their wives to come in contact with other men, and themselves to bring about their intercourse in secret.’

It is quoted in Mitākṣarā (2.285), where Bālambhaṭṭī has the following notes: — ‘The said rule is not applicable to cases where conversation is held with the wives of actors, singers and people of that class who make a living by the beauty of their own (wives), i.e., those who permit other men to have intercourse with their wives, — the wife being called ‘ātman,’ in accordance with the dictum that ‘the wife and son of a man are his very self,’ — ‘for the purpose of making money, and help their wives to meet other men, and even connive secretly — showing as if they did not see it — at other men coming to their wives.’

It is quoted in Vivādacintāmaṇi (p. 174), which has the following notes: — ‘Cāraṇa,’ dancer, — ‘ātmopajīvin’ is the professional actor, who makes a living by his ‘ātman,’ i.e., his wife, — these two clashes of men deck up their wives for the purpose of entrapping young men, and hence conversation with their wives is not to be penalised, though intercourse with these also is to be punished; — and in Vīramitrodaya (Vyavahāra, 156a).

Comparative notes by various authors:

(verses 8.362-363)

Baudhāyana (2.4.3). — ‘Corporal punishment shall not be inflicted for adultery with the wives of minstrels and play-actors; for their husbands themselves either actually lead them to other men, or concealed at home, permit them to hold culpable intercourse.’

Yājñavalkya (2.293). — ‘For approaching a female ascetic, the fine is twenty-four Paṇas.’

VERSE 8.363

Section XLVI - Adultery

किं चिदेव तु दाप्यः स्यात् सम्भाषां ताभिराचरन् ।
प्रैष्यासु चैकभक्तासु रहः प्रव्रजितासु च ॥३६३॥

kiṃ cideva tu dāpyaḥ syāt sambhāṣāṃ tābhirācaran |
praiṣyāsu caikabhaktāsu rahaḥ pravrajitāsu ca ||363||

Yet he who secretly carries on conversation with these women, or with maidservants devoted to one master, or with female ascetics, should be made to pay something. — (363)

Medhātithi’s commentary (manubhāṣya):

‘Secretly’ — not in public, but in a solitary spot; — he who carries on conversation with the women of dancers and singers, — should be fined ‘something’ — i.e., some small amount of gold — the thirtieth part of a ‘suvarṇa’ or some such thing; the exact amount being determined in conformity with the caste of the party concerned and the circumstances attending each case. The reason why some punishment is necessary lies in the fact that the women concerned are not entirely public women, — it is with the permission of their husbands that they admit paramours. It is on account of this fact of their not being independent that they should be approached, not directly, but through a go-between; for the purpose of ascertaining if the mesalliance has the husband’s sanction.

Holding conversation with them openly however, — when for instance, they are dancing and singing, and they are questioned regarding the tune or the timing and other details of the song, — this is not forbidden.

‘Maidservant’ is slave-girl; acquired by any one of the seven methods of acquiring slaves.

‘Devoted to one master,’ — i.e., those that are the kept mistresses of any one man.

In the case of these last there is some ground for other kinds of punishment also.

“Is the term ‘maidservant’ meant to be a relative term, — meaning the slave owned by a certain master P Or does it denote simply a servant, just like such terms as ‘cook’ and the like?”

In the present context the term is used in the former sense The meaning being that when some one has intercourse with a slave girl or a prostitute kept by another man, — such woman is punished, just as a king’s slave would be. If however the girl has not been ‘kept’ by any one, then there is no wrong done. As the present text prescribes the punishment to be inflicted for ‘adultery’ with a woman ‘kept’ by another man.

We shall explain this in greater detail under the section on division of property.

‘Female ascetics,’ — those having no guardian to look after them, e.g., Śilamitrā and so forth (?) These women hide their lascivious tendencies under the cloak of asceticism. — (363)

Explanatory notes by Ganganath Jha:

‘Pravrajitāsu’ — ‘Women without protectors’ (Medhātithi); — ‘Female mendicants (Nārāyaṇa); — ‘nuns’ (Kulluka); — ‘Buddhist and other nuns’ (Rāghavānanda and Rāmacandra).

This verse is quoted in Vivādaratnākara (p. 387), to the effect that even in the case of the said women, if the man holds conversation secretly, he is to be punished. It adds the following notes: — ‘Praiṣyāsu,’ slave-girls, — ‘ekabhaktāsu,’ a woman kept by one man only, — ‘pravrajitāsu,’ ‘Buddhist and other nuns’; — ‘kiñcit, i. e., something less than the ‘Suvarṇa’ which has been prescribed (in verse 361) as the fine.

It is quoted in Bālambhaṭṭī (p. 285), to the effect that even in the case of the wives of actors and the rest, if a man holds conversation in solitary places, he should be fined some little amount; as these also are ‘wives of other men;’ similarly some little fine is to be imposed for conversing with such women as kept slave-girls, nuns and so forth.

Comparative notes by various authors:

(verses 8.362-363)

See Comparative notes for Verse 8.362.

VERSE 8.364

Section XLVI - Adultery

योऽकामां दूषयेत् कन्यां स सद्यो वधमर्हति ।
सकामां दूषयंस्तुल्यो न वधं प्राप्नुयान्नरः ॥३६४॥

yo'kāmāṃ dūṣayet kanyāṃ sa sadyo vadhamarhati |
sakāmāṃ dūṣayaṃstulyo na vadhaṃ prāpnuyānnaraḥ ||364||

If a man of equal status violates an unwilling maiden, he deserves immediate death; but if he violates a willing one, he shall not suffer death. — (364)

Medhātithi’s commentary (manubhāṣya):

What is stated here is only by the way.

‘Of equal status’ — belonging to the same caste as the girl.

If he ‘violates an unwilling maiden’ — i.e., deprives her of her virginity, through sexual intercourse, — he should be killed on the same day, without delay.

In the case of the willing maiden, there is no real ‘violating’; how could there be any possibility of death being inflicted? We shall explain later on what should be done in such a case.

Though in the present text only the man ‘of equal caste’ has been mentioned, yet from considerations of the castes of the parties concerned, death also would be inflicted in certain cases. — (364)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 401), which explains ‘akāmām’ as ‘unwilling,’ — and ‘tulyaḥ’ as a ‘man belonging to a caste intercourse with which is lawful.’

It is quoted in Aparārka (p. 858), which adds the following notes: — ‘Akāmām,’ ‘unwilling’ — ‘konyām,’ ‘unmarried girl who retains her virginity’ — if one violates, — he, whether he be of the same caste as the maiden, or of a different caste, deserves death, if he is not a Brāhmaṇa; if he is a Brāhmaṇa, some other penalty has to be imposed upon him. — If however the maiden is willing and is violated by a man who is her ‘equal’ — belongs to the same caste as herself — then the penalty shall be, not death, but the ‘highest amercement.’

It is quoted in Mitākṣarā (2.288) to the effect that even in the case of a maiden of the same caste, if one has intercourse with her, when she is not willing, the penalty is death; but Bālambhaṭṭī adds that this refers to non-Brāhmaṇas, — and that the ‘death, vadha’ means the cutting off of the male organ and so forth; — and in Vīramitrodaya (Vyavahāra, 157a).

It is quoted in Parāśaramādhava (Vyavahāra, p. 321); — and. in Vivādacintāmaṇi (p. 175), which explains the meaning to be that ‘if a man despoils a virgin of the same caste without her consent, he deserves vadha, not if he does it with her consent.

Comparative notes by various authors:

(verses 8.364-368)

Yājñavalkya (2.287-218). — ‘A man who carries away a decorated maiden, of the same caste as himself, shall pay the highest amercement; but the lowest amercement, if she is not decorated; if she belongs to a higher caste, corporal punishment shall be inflicted. If the man has earned away a maiden of a caste lower than himself, there is no offence, if she has gone with her consent; otherwise, the fine inflicted shall be of the lowest degree. If the maiden has been defiled, the hands of the man shall he cut off; and he shall he killed if the maiden is of a higher caste.’

Śaṅkha-Likhita (Aparārka, p. 859). — ‘If the man has intercourse with an unwilling maiden, he shall have two of his fingers cut off, and he shall also pay a fine. If the maiden is of a higher caste, he shall he killed. If the maiden belongs to the same caste and has been willing, he shall pay the nuptial fee and also give her ornaments and a double dowry, and then accept her as wife.’

Nārada (12.71-72). — ‘When a man has connection with a maiden against her will, he shall have two fingers cut off. If the maiden belongs to the highest caste, death and the confiscation of his entire property shall he his punishment. When, however, he has connection with a willing maiden, it is no offence; hut he shall bestow ornaments on her, honour her with other presents and then lawfully espouse her.’

Bṛhaspati (23.10). — ‘The King shall confiscate the entire property of one who violates an unwilling woman; and having his penis and scrotum cut off, shall cause him to he paraded on an ass.’

Āpastamba (2.26-21). — ‘If one has intercourse with a maiden, his porperty shall he confiscated and he shall be banished.’

Matsyapurāṇa (Vivādaratnākara, p. 401). — ‘One who violates an unwilling maiden, shall he immediately killed; if he defiles her with her consent, he shall he fined the first amercement.’

Ārthaśāstra (p. 172). — ‘If one violates a maiden of the same caste as himself, before puberty, his hands shall be cut off, or he shall be fined four hundred; if she has attained puberty, his middle and index fingers shall be cut off, or a fine of 200 shall be imposed, and he shall pay damages to her father.’

Arthaśāstra (p. 173). — ‘If one outrages a girl after marriage, he should pay a fine of 54 Paṇas; he shall also make good the nuptial fee paid by her husband and also the expenses of her marriage.’

Do. (p. 172). — ‘One may make love to a maiden who has had seven monthly courses, who has not met her husband after her betrothal; nor shall he pay any damages to the father. If three years have elapsed since her puberty there is no offence in a man of the same caste having intercourse with her after three years; even one of inferior caste incurs no offence, if the girl is not decorated; he would be a thief if he took with the girl the ornaments given her by her father.’

Do. (p. 174). — ‘If a girl is willingly deflowered by another girl of the same caste, she should pay a fine of 12 Paṇas, and the woman who has outraged her, double of that. If a man deflowers a girl without her consent, he shall be fined a hundred and shall also pay the nuptial fee. If she has deflowered herself, she should he made the King’s slave. If one forcibly takes away a maiden, he should he fined 200; if she is adorned with golden ornaments, then the highest amercement.’

VERSE 8.365

Section XLVI - Adultery

कन्यां भजन्तीमुत्कृष्टं न किं चिदपि दापयेत् ।
जघन्यं सेवमानां तु संयतां वासयेद् गृहे ॥३६५॥

kanyāṃ bhajantīmutkṛṣṭaṃ na kiṃ cidapi dāpayet |
jaghanyaṃ sevamānāṃ tu saṃyatāṃ vāsayed gṛhe ||365||

If a maiden approaches a superior person, she shall not be made to pay anything; if however she courts an inferior person, she shall be kept confined in the house. — (365)

Medhātithi’s commentary (manubhāṣya):

If a maiden ‘approaches’ — has sexual intercourse with — ‘a superior person’ — one whose caste, wealth, character, learning is superior to that of her father’s family, — she shall not be fined anything.

In as much as the girl is never her own mistress, the punishment would fall upon her guardians, father and others; and it is the punishment that is precluded here.

‘Inferior — in caste or other things.

‘Courts,’ — tries to have intercourse with.

‘Confined,’ — not being allowed to take part in any amusements, and guarded by attendants.

She shall be made to live in her father’s house, till she gets rid of her love-longings. If however she continues to have her love centred in the inferior persons, then she should be kept confined till her last breath. — (365).

Explanatory notes by Ganganath Jha:

‘Samyatām’ — ‘Kept away from amusements and guarded by chamberlains’ [not ‘relatives’ as stated by Buhler] (Medhātithi); — ‘bound’ (Nārāyaṇa). Kullūka is misrepresented by Buhler: he says nothing about ‘fettering’; he only says that she is to be kept in the house ‘with care’.

This verse is quoted in Vivādaratnākara (p. 404), which explains ‘Sāvamānām’ as ‘winning him over to herself for the purposes of sexual intercourse’, — and ‘samyatām’ as ‘imprisoned.’

Comparative notes by various authors:

(verses 8.364-368)

See Comparative notes for Verse 8.364.

VERSE 8.366

Section XLVI - Adultery

उत्तमां सेवमानस्तु जघन्यो वधमर्हति ।
शुल्कं दद्यात् सेवमानः समामिच्छेत् पिता यदि ॥३६६॥

uttamāṃ sevamānastu jaghanyo vadhamarhati |
śulkaṃ dadyāt sevamānaḥ samāmicchet pitā yadi ||366||

An inferior man courting a superior maiden deserves death; he who courts a maiden of equal status, shall pay the nuptial fee, if her father so wishes. — (366).

Medhātithi’s commentary (manubhāṣya):

It has been said that in the case of violating an unwilling maiden, all men, be they superior or inferior, should suiter death, with the sole exception of the Brāhmaṇa; and the present verse, they say, lays down the law relating to the violating of a willing maiden.

‘Superior,’ — in beauty, youth, caste and other points.

‘Inferior’ — the lowest.

The man is not to be killed if there is any equality between the parties.

If a man approaches a willing maiden who is equal to him in status, — he shall pay to her father the nuptial fee, as is done in the case of the ‘Asura’ form of marriage. But if the father does not desire to receive the fee, that amount shall be paid as fine to the king.

“In as much as this would he a case of ‘Gāndharva’ marriage — marriage by mutual consent, — it cannot be right to inflict any punishment.”

Who has said that there is to be no punishment in the case of marriage by mutual consent? In fact such an act would not be one befitting a chaste woman; nor would it he regarded as ‘marriage,’ for the simple reason that it would not have a sacramental character. As for the declaration in the Mahābhārata, in connection with Śakuntalā, to the effect that ‘the Gāndharva is a form of marriage, without fire and without mantras,’ — this was an assertion made by Duṣyanta while he was suffering from the pangs of love. Further, mere ‘willing intercourse’ does not constitute ‘marriage.’ Marriage has been classified under eight heads on the basis of different methods used for taking a wife; and it does not mean that there are eight kinds of marriage. So that (in the Gāndharva marriage also), the due selection of the bridegroom (even though he has been already chosen by the bride) and the subsequent rites have got to be performed.

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