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Or, the ‘Gāndharva’ may be accepted as a ‘marriage’ only in the case of a maiden after puberty; and before that, the man is to pay the nuptial fee or a fine.

The question arises — what is to be done with the maiden?

The answer is that she shall be given to that same man. But if she has ceased to love him, she may be given to another man. But in either case the ‘nuptial fee’ has got to be paid, by way of compensation for the single act of intercourse.

If the man has ceased to love the girl, he shall be forced to accept her. — (366)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 402), which adds the following notes: — ‘Uttamām’ has to be qualified by ‘if willing’; — ‘samām,’ belonging to the same caste as himself; — ‘śulkam’, fee agreed upon by both the parties, as in the ‘Āsura’ form of marriage.

It is quoted in Parāśaramādhava (Vyavahāra, p. 321), to the effect that when a man of the lower caste has intercourse with a maiden of a higher caste, whether willing or unwilling, his penalty is death, but when one has intercourse with a willing maiden of the same caste as himself, then he shall present to her father a cow and a bull, if the latter be willing to accept it (and the man has to marry the maiden in this case, adds Bālambhaṭṭī); but if the father is not willing to receive the fee, its equivalent shall be paid as fine to the king (and in this case also the maiden is to be married to the man).

It is quoted in Vīramitrodaya (Vyavahāra, 157a).

Comparative notes by various authors:

(verses 8.364-368)

See Comparative notes for Verse 8.364.

VERSE 8.367

Section XLVI - Adultery

अभिषह्य तु यः कन्यां कुर्याद् दर्पेण मानवः ।
तस्याशु कर्त्ये अङ्गुल्यौ दण्डं चार्हति षट्शतम् ॥३६७॥

abhiṣahya tu yaḥ kanyāṃ kuryād darpeṇa mānavaḥ |
tasyāśu kartye aṅgulyau daṇḍaṃ cārhati ṣaṭśatam ||367||

But if any man wantonly defiles a maiden through sheer audacity, his fingers should be instantly clipped off, or he should be fined six hundred. — (367)

Medhātithi’s commentary (manubhāṣya):

Even though the maiden may be willing, if her parents and other relatives are close hy, and their presence is not heeded by the man who, through sheer audacity, relying upon his force and having the idea ‘who can do anything to me?’ — and relying solely upon the maiden’s love for him — ‘defiles her,’ — the root ‘kṛ’ which has many meanings, stands here for the act of defiling, then ‘his fingers should be clipped off’; — or ‘he should be fined six hundred.’

Others have held that this verse sums up what has been said (under 361) regarding the violating of an unwilling maiden, to be punished with ‘death.’ ‘Killing’ in this connection stands for corporal punishment — beginning with beating and ending with actual killing; and what the present text means is that if a man defiles a maiden of a low caste, he shall not be killed. — he shall have only his fingers clipped off.

Explanatory notes by Ganganath Jha:

This verse is quoted in Parāśaramādhava (Vyavahāra, p. 321), to the effect that two fingers are to be cut off if the man only defiles the maiden with his fingers; — in Aparārka (p. 858), which adds the following notes: — ‘Abhiṣahya’, forcibly, — ‘kuryāt,’ defile the maiden by the introduction of fingers, — the two fingers (its reading being ‘kartye aṅgulyau’) with which he defiles her should be cut off at once, without delay; — in Vivādaratnākara (p. 403), which has the following notes: — ‘Abhiṣahya,’ insolently, — ‘kuryāt,’ should defile, — ‘kalpye’ (which is its reading for ‘kartye’), should be cut off; — and in Mitākṣarā (2.288), to the effect that when a man defiles an unwilling maiden of the same caste as himself by thrusting his fingers into her, he should be fined 600 and two of his fingers should be cut off.

It is quoted in Vīramitrodaya (Vyavahāra, 157a).

Comparative notes by various authors:

(verses 8.364-368)

See Comparative notes for Verse 8.364.

VERSE 8.368

Section XLVI - Adultery

सकामां दूषयंस्तुल्यो नाङ्गुलिछेदमाप्नुयात् ।
द्विशतं तु दमं दाप्यः प्रसङ्गविनिवृत्तये ॥३६८॥

sakāmāṃ dūṣayaṃstulyo nāṅgulichedamāpnuyāt |
dviśataṃ tu damaṃ dāpyaḥ prasaṅgavinivṛttaye ||368||

A man of equal status defiling a willing maiden shall not suffer amputation of fingers; he should be made to pay the fine of two hundred with a view to prevent repetition. — (368)

Medhātithi’s commentary (manubhāṣya):

Inasmuch as the foregoing verse also pertains to the case of a willing maiden, the penalty therein laid down applies to the case where the man defiles her through sheer audacity; while in a case where he does it by stealth, secretly like a thief, the punishment shall consist of the fine of two hundred, without the amputation of the fingers.

Or, the text may refer to the following case —

If the maiden happens to be in lore with a certain man, and having had intercourse with him has lost her virginity, — then since the girl was willing, the man, for the crime of defiling her, shall suffer the penalty here laid down.

Or, the ‘defiling’ meant here may be taken as the touching of the hand and some such part of the body; the man’s motive being — ‘if people see me touching her hand, they will think that she loves me and then no one else will seek for her baud, and she shall be mine.’ — (368)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 403), which adds that this applies to the case where the maiden is of a lower caste; — in Parāśaramādhava (Vyavahāra, p. 321); — in Mitākṣarā (2.288) as providing for a case where the finger-defilement occurs in the case of a willing maiden. Bālambhaṭṭī adds that ‘tulyaḥ’ means a man of the same caste as the girl; — he is to be fined 200 with a view to prevent repetition.

It is quoted in Vīramitrodaya (Vyavahāra, 157a).

Comparative notes by various authors:

(verses 8.364-368)

See Comparative notes for Verse 8.364.

VERSE 8.369

Section XLVI - Adultery

कन्यैव कन्यां या कुर्यात् तस्याः स्याद् द्विशतो दमः ।
शुल्कं च द्विगुणं दद्यात्शिफाश्चैवाप्नुयाद् दश ॥३६९॥

kanyaiva kanyāṃ yā kuryāt tasyāḥ syād dviśato damaḥ |
śulkaṃ ca dviguṇaṃ dadyātśiphāścaivāpnuyād daśa ||369||

If a maiden pollutes another maiden, her fine shall be two hundred; she shall also pay the double of her nuptial fee and shall receive ten lashes. — (369)

Medhātithi’s commentary (manubhāṣya):

Either through childishness, or through jealousy for her greater beauty, if a maiden pollutes another maiden, then she should be made to pay two hundred; and also the double of her nuptial fee.

What Is the amount of this fee?

It shall depend upon the beauty of the girl, or upon her fortune and other qualities.

‘Lashes’ — strokes of rope or creeper. — (369).

Explanatory notes by Ganganath Jha:

This verse is quoted in Parāśaramādhava (Vyavahāra, p. 321); — in Vivādaratnākara (p. 403), which adds that ‘dviguṇam’ means ‘double of 200’; — and ‘śiphā’ stands for ‘strokes of creepers, ropes and such other things’; — in Aparārka (p. 859), which adds the following explanation: — If one maiden happen to penetrate another with her fingers or some such thing, she shall pay a fine of 200 to the king, and that fee or price which the defiled maiden is worth, three times (its reading being ‘triguṇam’ or ‘dviguṇam’) that shall be paid to her by the other girl, who is, in addition, to receive ten stripes — i.e., strokes of rope or creepers.

It is quoted in Mitākṣarā (2.288) to the same effect; where it adds that ‘double the fee’ (dviguṇam śulkam) is to be paid by the offending girl to the father of the defiled girl.

It is quoted in Vyavahāra-Bālambhaṭṭī (p. 1016); — and in Vīramitrodaya (Vyavahāra, 157a).

VERSE 8.370

Section XLVI - Adultery

या तु कन्यां प्रकुर्यात् स्त्री सा सद्यो मौण्ड्यमर्हति ।
अङ्गुल्योरेव वा छेदं खरेणोद्वहनं तथा ॥३७०॥

yā tu kanyāṃ prakuryāt strī sā sadyo mauṇḍyamarhati |
aṅgulyoreva vā chedaṃ khareṇodvahanaṃ tathā ||370||

But if a woman pollutes a maiden, she deserves immediate shaving off, or the amputation of two fingers, and also being carried by a donkey. — (370)

Medhātithi’s commentary (manubhāṣya):

If a woman destroys the virginity of a maiden, she shall have her head shaven off; or undergo amputation of her fingers.

‘Being carried by a donkey’ — in the case of shaving. Some people hold that the different penalties are laid down in view of the caste of the girl, and the caste of the polluter; — the three penalties applying to the three castes Brāhmaṇa and the rest:

But there being no authority for such a view, it should be ignored. — (370)

Explanatory notes by Ganganath Jha:

According to ‘others’ in Medhātithi and Nārāyaṇa, the verse describes three distinct penalties for women of the three distinct castes. Govindarāja and Kullūka hold that in any one case, whether one or the other of the three penalties shall be inflicted will depend upon the circumstances of that case.

This verse is quoted in Parāśaramādhava (Vyavahāra, p. 321; — in Vivādaratnākara (p. 403), which explains ‘strī’ as a woman who is herself not a maiden; — in Aparārka (p. 859), which says strī meant here is ‘other than a maiden’, the ‘maiden’ having been already dealt with in the preceding verse; — in Mitākṣarā (2.288), which, explains ‘strī’as ‘a grown up experienced woman’; — and in Vīramitrodaya (Vyavahāra, 157a), which explains ‘prakuryāt’ as ‘causes penetration.’

VERSE 8.371

Section XLVI - Adultery

भर्तारं लङ्घयेद् या तु स्त्री ज्ञातिगुणदर्पिता ।
तां श्वभिः खादयेद् राजा संस्थाने बहुसंस्थिते ॥३७१॥

bhartāraṃ laṅghayed yā tu strī jñātiguṇadarpitā |
tāṃ śvabhiḥ khādayed rājā saṃsthāne bahusaṃsthite ||371||

If a woman, proud of relations and her qualities, passes over her husband, the king shall have her devoured by dogs in a place frequented by many. — (371)

Medhātithi’s commentary (manubhāṣya):

‘Passing over’ means neglecting the husband and going over to another man; if a woman does this through ‘pride,’ — the pride consisting in the idea, — ‘I have several relations who are powerful and wealthy, and I myself am possessed of all the excellent qualities of a woman, such as beauty and love, — why then should I mind my character?’

Such women the king shall get devoured, till they die.

‘Place’ — spot; where many people congregate, such as road-crossings, market-squares and so forth. — (371)

Explanatory notes by Ganganath Jha:

This verse is quoted in Parāśaramādhava (Ācāra, p. 119); — and in Vivādaratnākara (p. 399), which adds the following notes: — ‘Laṅghayet’, disregarding her husband, if she goes to another man, — ‘jñātistrīguṇadarpitā’, being insolent on account of her relatives and such feminine qualities as beauty and the like.

Comparative notes by various authors:

Gautama (Aparārka, p. 857). — ‘If one commits adultery with a woman of a superior caste, his organ shall he cut off, and his property confiscated.’

Gautama (23.14). — ‘A woman who commits adultery with a man of lower caste, the King shall cause to he devoured by dogs in a public place.’

Vaśiṣṭha (21.1). — (See under next verse.)

Viṣṇu (5.18). — ‘A woman who violates the duty which she owes to her lord shall be put to death.’

Nārada (12.91). — ‘When a married woman commits adultery, her head shall be shaved, she shall have to he on the ground, receive bad food and bad clothing and the removal of sweepings shall he assigned to her as her occupation.’

Kātyāyana (Vivādaratnākara, p. 400). — ‘If during her husband’s absence, a woman is detected in illicit intercourse, she shall he kept confined till her husband’s return.’

Yama (Vivādaratnākara, p. 398). — ‘If a Brāhmaṇa woman, deluded by pride, has recourse to a Śūdra, her the King shall have devoured by dogs at the place of execution. If a Brāhmaṇa woman has recourse to a Vaiśya or a Kṣatriya, her head shall be shaved and she shall be paraded on an ass.’

Mahābhārata (12.165.64). — ‘If a woman forsakes a superior bed and has recourse to an inferior one, the King shall have her torn by dogs in a crowded place.’

Arthaśāstra (p. 171). — ‘If during her husband’s absence a woman has intercourse with her husband’s relative or servant, she should await her husband’s return; if the husband forgives them, the two parties shall be released; if he does not forgive, the woman’s ears and nose shall be cut off and her lover shall be put to death.’

Yājñavalkya (2.286). — ‘If both parties to an adultery belong to the same caste, the highest fine shall he inflicted on the man; if the woman is of an inferior caste, the man shall he fined with the middle amercement; if she belongs to a superior caste, the man shall be put to death and the woman’s ears and other parts shall he cut off.’

Matsyapurāṇa (Vivādaratnākara, p. 400). — ‘If during her husband’s absence a man defiles a woman forcibly, he should he punished with death, and there is no blame attaching to the woman.’

Hārīta (Vivādaratnākara, p. 396). — ‘If a man violates the bed of one of inferior caste, he should be made to be devoured by dogs, and the woman should be burnt by wood-fire.’

VERSE 8.372

Section XLVI - Adultery

पुमांसं दाहयेत् पापं शयने तप्त आयसे ।
अभ्यादध्युश्च काष्ठानि तत्र दह्येत पापकृत् ॥३७२॥

pumāṃsaṃ dāhayet pāpaṃ śayane tapta āyase |
abhyādadhyuśca kāṣṭhāni tatra dahyeta pāpakṛt ||372||

The offending male he should make to lie down upon a redhot iron bed; they shall put wooden-logs over him, so that the sinner may be burnt. — (372)

Medhātithi’s commentary (manubhāṣya):

The paramour of the woman spoken of in the preceding verse shall be burnt to death on an iron-bed made hot like fire.

Over him thus lying on the bed the executioners shall throw logs of wood, till he dies by the heat and by the strokes of the logs. — (372)

Explanatory notes by Ganganath Jha:

This verse is quoted in Aparārka (p. 857), which adds that this applies to men other than Brāhmaṇas; — in Vivādaratnākara (p. 39), which explains ‘abhyādadhyuḥ’ as ‘should scatter round him’ — and adds that this is to be done by the executioners.

Comparative notes by various authors:

Mahābhārata (12.165.65). — (Same as Manu, but reading ‘unnayet’ for ‘dāhayet’)

Gautama (23.15). — ‘If a man of inferior caste commits adultery with a woman of a superior caste, the King shall put him to death.’

Vaśiṣṭha (21.1-5). — ‘If a Śūdra approaches a female of the Brāhmaṇa caste, the King shall cause him to be tied up in Vīraṇa grass and thrown into fire. Of the woman, he shall have the hair shaved and the body anointed with butter; then placing her naked on a donkey, he shall cause her to be conducted along the public road; it is declared that by this she becomes purified. If a Vaiśya approaches a female of the Brāhmaṇa caste, the King shall have him tied up in Lohita grass and thrown into fire; — [the woman is to be dealt with as above]. If a Kṣatriya approaches a female of the Brāhmaṇa caste, the King shall have him tied up in the leaves of Śara grass and thrown into fire; [the woman is to be dealt with as above], A Vaiśya offending with a Kṣatriya woman shall be dealt with in the same manner; so also a Śūdra offending with a Vaiśva or Ksatriya woman.’

VERSE 8.373

Section XLVI - Adultery

संवत्सराभिशस्तस्य दुष्टस्य द्विगुणो दमः ।
व्रात्यया सह संवासे चाण्डाल्या तावदेव तु ॥३७३॥

saṃvatsarābhiśastasya duṣṭasya dviguṇo damaḥ |
vrātyayā saha saṃvāse cāṇḍālyā tāvadeva tu ||373||

If the convicted man is accused again within a year, he shall be punished with a double fine. the same also in the case of intercourse with a ‘vrātyā’ or a ‘chāṇḍālī.’ — (373)

Medhātithi’s commentary (manubhāṣya):

‘Convicted’ — charged of the crime; when a man has committed adultery with a woman and has been punished, he is said to be ‘convicted.’

If such a man, within a year, commits adultery with the same woman, then the man being thus convicted and accused again, the fine shall be double.

Another reading is ‘saṃvatsarābhiśastasya’ in the compounded form. In this case also the passage may be construed somehow.

‘“The same also in the case of intercourse with a “vrātyā,”’ — that is, when accused again.

Such cannot be the meaning of the verse, we say. In the case of the intercourse in question, there are hound to be various grades of punishment, in the shape of the ‘lowest,’ the ‘middle’ and the ‘highest’ amercement. So that it is not clear the ‘double’ of which one is meant.

What therefore is meant by ‘the same’ is that the line in the case of intercourse with the ‘vrātyā’ is to be ‘the same’ as that in that of the ‘caṇḍālī’; and for the latter case, the tine of ‘one thousand’ has been prescribed under 385, below.

‘Vrātyā.’ — ‘Vrāta’ means host, crowd; so that the ‘vrātyā’ would be one who has intercourse with a large number of men; the term being explained etymologically as ‘vrātena charati’; or it may be explained as ‘vrātam arhati,’ the ya in the middle coming in in accordance with Pāṇini, 5.1.66. Who would be the woman that would be ‘vrātyā’ in this latter sense? The unchaste woman who has intercourse with several men; for it is only she that can be said to be fit for a host,’ (‘vrātam arhati’).

Or, the term ‘vrātyā’ may stand for the village slave-girl, who has several masters.

Some people explain ‘vrātyā’ as meaning unmarried.

But according to this view the term would not be held to be used in its primary sense. For the writers on Smṛti have used the term in the sense of ‘those who have fallen off from the Sāvitrī’; and this cannot he applicable to women.

“But for the woman marriage has been declared to be the substitute for upanayana (initiation into Sāvitrī). So that she who has not been married, would be a ‘vrātyā.’”

But in that case the term would be used in the figurative, not the primary, sense. Even though the term ‘upanayana’ has been used in the sense of marriage, which is not-upanayana, yet when it is declared that ‘the man who is devoid of the upanayana is called a vrātya,’ it is never understood to mean that the man devoid of marriage is meant. Just as when it is said that ‘this place is without a lion,’ it is never understood to mean that ‘the place is without the boy,’ — eveu though the term ‘lion’ may have been figuratively used for the ‘boy.’

“In the latter case there is possibility of the primary moaning of the term ‘lion’ being applicable, but in the case in question, there is no such for the term ‘upanayana.’”

Figurative use does not depend entirely upon the impossibility of the primary meaning; it stands in need of other attendant circumstances also.

Then again, there is no doubt that the term ‘upana yana’ in the sense of marriage can be only figurative; but what reason can there be for regarding the term ‘vrātyā’ also (in the present text) as figurative? Even though it be figurative, it will he difficult to explain this as being based upon the fact of there being no marriage.

Further, it may be supposed that the woman born of a vrātya,’ is also a vrātyā on the analogy of the bird born of a crow being a crow, and that born of the kite being a kite. And the term ‘vrātyā’ would he applicable to the child by its relationship to the ‘vrātyā’ (the nominal affix denoting this relationship).

“But the wife of the vrātya man cannot be called a ‘vrātyā,’ even though she bear a relationship to him.”

But in the case cited the difficulty would be due to the case coming under Pāṇini’s Sūtra 4.1.18 (by which the feminine form would be ‘vrātyī’). The case of ‘the child born of the Vrātyā woman’ however does not come under this Sūtra.

Thus then, if the term ‘vrātyā’ is to be taken in a figurative sense, it is to be understood to stand for ‘the woman born of a vrātyā woman.’ If on the other hand, the term is used in its primary sense, then it must mean ‘she who is fit for a vrāta or crowd,’ — The ‘unmarried woman’ on the other hand does not come in either as the primary or the figurative meaning. Further, there is no time fixed for the marriage of women, by transgressing which they would become vrātyā (in the sense in which the man transgressing the time-limit for Upanayana becomes known as vrātya). As for the rule that girls should be married before puberty, — its transgression also is permitted by the sanctioning of the custom of ‘Svayaṃvara,’ ‘self-choice,’ which can be done only when a woman is of a sufficiently advanced age, and hence has attained puberty. And further, if no girl were to be married after puberty, several girls would have to remain in their father’s house till death. — (373).

Explanatory notes by Ganganath Jha:

‘Vrātyā’ — ‘(a) A public woman, or (b) a woman who belongs, as slave, to several men, or (c) ‘unmarried’ (the last being rejected) (Medhātithi who is misrepresented by Buhler); — ‘the wife of a person, who, though of a twice-born caste, has not had his sacraments’ (Govindarāja 'and Kullūka).

This verse is quoted in Vivādaratnākara (p. 394), which adds the following Explanatory notes: — If a man is found to persist in the intercourse for one year, after having been convicted of it, — he should suffer double the penalty prescribed for the first offence of its kind; and the penalty should be enhanced in proportion to the period of duration of the connection. ‘Vrātyā’ is the woman fallen from virtue, who has abandoned all meritorious acts; but Halāyudha explains ‘vrātyā’ as a maiden that has passed her marriageable age.

Comparative notes by various authors:

Mahābhārata (12.165.66). — ‘On having intercourse with a Cāṇḍāla woman, a man of the three higher castes shall he branded with the sign of a headless body and banished; but the Śūdra shall be only branded. A Cāṇḍāla approaching an Ārya woman shall be put to death.’

VERSE 8.374

Section XLVI - Adultery

शूद्रो गुप्तमगुप्तं वा द्वैजातं वर्णमावसन् ।
अगुप्तमङ्गसर्वस्वैर्गुप्तं सर्वेण हीयते ॥३७४॥

śūdro guptamaguptaṃ vā dvaijātaṃ varṇamāvasan |
aguptamaṅgasarvasvairguptaṃ sarveṇa hīyate ||374||

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