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A śūdra having intercourse with a twice-born woman, protected or unprotected, shall be deprived of his limb and his whole property, in the case of the unprotected woman, and of everything in that of the protected. — (374).

Medhātithi’s commentary (manubhāṣya):

‘Śūdra’ — i.e., down to the Caṇḍāla; — ‘having intercourse’ — sexual — ‘with a twice-born woman’; — ‘protected or unprotected’ — by her husband, — shall be punished according to law.

What shall be the punishment?

If he has intercourse with an unprotected woman, he shall be deprived of his ‘limb,’ and also of ‘his whole property.’

As to the question regarding what he is to be deprived of, the answer is provided by the epithet ‘aṅgasarvasvi,’ which mentions the ‘limb’ and the ‘whole properly’; especially as nothing else is mentioned, and no other thing is specified.

The limb of which he is to be deprived is that with which he has offended.

If he has intercourse with a ‘protected’ woman, ‘he is to be deprived of everything,’ — not of only one limb, but of the whole body.

The present verse lays down the amputation of the limb, the confiscation of his entire property, and the inflicting of death, as forms of punishment, — the sense being that punishment should be inflicted on the man. Says Gautama (12.2): — In the case of intercourse with women, there should be amputation of the generative organ and also the confiscation of his entire property, — if she happens to be protected’ — (374)

Explanatory notes by Ganganath Jha:

This verse is quoted in Parāśaramādhava (Vyavahāra p. 378), to the effect that when a Śūdra has intercourse with an unguarded woman of a higher caste, his organ is to be cut off and all his property confiscated, and if he has recourse to a guarded woman of the higher caste, he shall suffer death and his entire property shall be confiscated.

It is quoted in Vivādaratnākara (p. 395), which adds the following notes: — ‘Dvaijātam varṇam’, a woman of the twice-born caste, — ‘āvasan’, having recourse to, — ‘aguptaikāṅgasarvasvī’ (which is its reading for ‘aguptamaṅgasarvasvī’), if the woman is one who is not guarded, the man shall be deprived of one limb and also of his entire property; and of his entire property as also of his entire body (if the woman is one who is guarded).

It is quoted in Mitākṣarā (2.280), which has the same explanation as the one in para 1 above; — in Vyavahāramayūkha (p. 100), which also has the same explanation — and in Vīramitrodaya (Vyavahāra, 156a).

Comparative notes by various authors:

(verses 8.374-378)

(See the texts under 372.)

Gautama (12.2). — ‘If a Śūdra has intercourse with an Ārya woman, his organ shall he cut off, and all his property shall be confiscated.’

Baudhāyana (2.3.52). — ‘Let him burn in straw-fire a Śūdra who has intercourse with an Ārya woman.’

Āpastamba (2.27.9). — ‘A Śūdra committing adultery with a woman of any of the three higher castes shall suffer capital punishment.’

Do. (2-26.20). — ‘If a man has actually committed adultery, his organ shall be cut off, together with the testicles.’

Vaśiṣṭha (21.1-5). — (See under 372.)

Yājñavalkya (2.286, 294). — ‘If one has intercourse with a woman of the same caste as himself, he shall be punished with the highest fine; if with a woman of a lower caste, with the middle fine; if with a woman of a higher caste, he shall be put to death and the woman’s ears and nose shall be cut off. If a Caṇḍāla has intercourse with an Ārya woman, he shall be put to death.’

Viṣṇu (5.40-43). — ‘An adulterer shall be made to pay the highest amercement, if he has had connection with a woman of his own caste; — for adultery with a woman of a lower caste, the middle amercement. He who has had connection with a woman of one of the lowest castes shall be put to death; — as also for having connection with a woman of the highest caste.’

Nārada (12.78). — ‘Intercourse is permitted with a wanton woman who belongs to another than a Brāhmaṇa-caste, or a prostitute, or a female slave, or a female not restrained by her master; if these women belong to a lower caste than oneself; but with a woman of a superior caste intercourse is forbidden.’

Bṛhaspati (23.12). — ‘The highest fine shall he inflicted for connection with a woman of equal caste; half of that, for connection with a woman of inferior caste; but a man who has connection with a woman of superior caste shall be put to death.’

Yama (Vivādaratnākara, p. 395). — ‘If a Śūdra has connection with a Brāhmaṇa woman, the King shall put him to death on a heated iron-bed, burning the sinful man there with wood, leaves and grass.’

VERSE 8.375

Section XLVI - Adultery

वैश्यः सर्वस्वदण्डः स्यात् संवत्सरनिरोधतः ।
सहस्रं क्षत्रियो दण्ड्यो मौण्ड्यं मूत्रेण चार्हति ॥३७५॥

vaiśyaḥ sarvasvadaṇḍaḥ syāt saṃvatsaranirodhataḥ |
sahasraṃ kṣatriyo daṇḍyo mauṇḍyaṃ mūtreṇa cārhati ||375||

The Vaiśya should be fined his entire property after a year’s imprisonment; the Kṣatriya is to be fined one thousand, and be shaved with urine. — (375)

Medhātithi’s commentary (manubhāṣya):

The confiscation of his entire property is the penalty prescribed for the Vaiśya. Though all the twice-born castes are mentioned together here, yet the penalty here laid down is not meant for the case where the Vaiśya has intercourse with a woman of the same caste; it is meant for cases of intercourse with Brāhmaṇa and Kṣatriya women.

Similarly in the case of the Kṣatriya having intercourse with a Brāhmaṇa woman, the punishment consists in a fine of one thousand, and also ‘shaving with urine,’ — i.e., the urine of the ass being used in place of water.

Others explain the verse as follows: — Since no other caste is mentioned, the punishment is meant for the case where the Vaiśya has intercourse with a woman of the same caste, — the additional punishment being due to his keeping her for a year. The sense is that if he keeps her for a year then his punishment shall be as here laid down.

As a matter of fact however, the former explanation appears to be more reasonable. It cannot be argued against it that — “the same punishment cannot rightly apply to cases of intercourse with equal, superior and inferior castes;” because it has been declared that ‘the wives of all castes are to be guarded with the greatest care.’ — (375)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 396), which adds the following Explanatory notes: — For having recourse to a guarded Brāhmaṇa woman, the Vaiśya is to be imprisoned for one year and his entire property is to be confiscated, — the Kṣatriya is to be fined 1000, and shall have his head wetted with urine and then shaved; — and in Vyavahāra-Bālambhaṭṭī (p. 1009).

Comparative notes by various authors:

(verses 8.374-378)

See Comparative notes for Verse 8.374.

VERSE 8.376

Section XLVI - Adultery

ब्राह्मणीं यद्यगुप्तां तु गच्छेतां वैश्यपार्थिवौ ।
वैश्यं पञ्चशतं कुर्यात् क्षत्रियं तु सहस्रिणम् ॥३७६॥

brāhmaṇīṃ yadyaguptāṃ tu gacchetāṃ vaiśyapārthivau |
vaiśyaṃ pañcaśataṃ kuryāt kṣatriyaṃ tu sahasriṇam ||376||

If the Vaiśya and the Kṣatriya have intercourse with an unprotected Brāhmaṇa woman, the Vaiśya should be committed with five hundred and the Kṣatriya with one thousand. — (376)

Medhātithi’s commentary (manubhāṣya):

‘Unprotected’ — has been explained as one who has lost her chastity and has no one to look after her.

For having intercourse with such a woman, he shall ‘commit’ the Vaiśya ‘with fine hundred.’ The verb to commit is to be taken in the sense of fining, from the context; the meaning is that ‘he shall be fined live hundred.’

The term ‘pañcaśutam’ is to be expounded as ‘he who has live hundred,’ — the Bahuvrīhi compound denoting possession.

The meaning is that the king should so commit him that he gets five hundred.

“Does this mean that if the man has more than five hundred, the excess shall he confiscated?”

Not so, we reply; for in that case if the man has only five hundred, then for him there would be no punishment prescribed.

“What I hen is the meaning?”

The expression ‘he shall he committed with five hundred’ means that he is to be punished with a fine consisting of five hundred. That such is the meaning is indicated by the context.

Similarly, ‘the Kṣatriya is to be committed with one thousand’; — i.e., his punishment shall consist of one thousand; and not that his property at home shall he one thousand.

The expression ‘aṅgasarvasvī’ (in verse 371) is to be explained similarly to mean that (he king shall so act that the man’s punishment consist of his limb and bis whole property.

The penalty for the Kṣatriya is severer, because it is his duty to guard people; so that if he offends, his guilt is the greater. — (376)

Explanatory notes by Ganganath Jha:

This vérse is quoted in Vyavahāramayūkha (p. 106); — in Mitākṣarā (2.286); where Bālambhaṭṭī adds that in ‘pañcaśatam’ we have Bahuvrīhi compound; and notes that the penalty for a Kṣatriya is double that for a Vaiśya, because it is the function of the former to protect and guard people from all kinds of harm; and that the fine of 500 prescribed for the Vaiśya is meant for that case where he does it under the impression that the woman is a Śūdra, or for that where the woman concerned is merely Brāhmaṇa by birth and is entirely devoid of all Brāhmaṇical virtues.

It is quoted in Vīramitrodaya (Vyavahāra, 156a).

Comparative notes by various authors:

(verses 8.374-378)

See Comparative notes for Verse 8.374.

VERSE 8.377

Section XLVI - Adultery

उभावपि तु तावेव ब्राह्मण्या गुप्तया सह ।
विप्लुतौ शूद्रवद् दण्ड्यौ दग्धव्यौ वा कटाग्निना ॥३७७॥

ubhāvapi tu tāveva brāhmaṇyā guptayā saha |
viplutau śūdravad daṇḍyau dagdhavyau vā kaṭāgninā ||377||

But both these, when offending against a protected Brāhmaṇa woman, should be punished like a Śūdra, or burnt in a fire of dry grass. — (377)

Medhātithi’s commentary (manubhāṣya):

‘Both these,’ i.e., the Vaiśya and the Kṣatriya — ‘offending against’ — i.e., having sexual intercourse with — a protected Brāhmaṇa woman — ‘should he punished like the Śūdra,’ — i.e. ‘deprived of everything, if the woman is protected’ (as declared in 374).

‘Or he should be burnt in a fire of dry grass’ — the term ‘or’ is meant to indicate option in the method of killing, and not in regard to the killing itself. Because in the case of the protected Brāhmaṇa woman, there is no other penalty for the Śūdra except death — (377)

Explanatory notes by Ganganath Jha:

This verse is quoted in Parāśaramādhava (Vyavahāra p. 318); — in Vyavahāramayūkha (p. 106); — and in Mitāk ṣarā (2.286), where Bālambhaṭṭī adds the following notes: — If a Kṣatriya or a Vaiśya have intercourse with a guarded Brāhmaṇa woman, he should be punished like a Śūdra, i. e., deprived of his whole body and his entire property (according to 374); i.e., his entire property should be confiscated and he should be put to death; — another alternative penalty prescribed is that he should be put to death, without any confiscation of property; and it is by means of the ‘Kaṭāgni’ that he is to be put to death.

It is quoted in Vīramitrodaya (Vyavahāra, 155b).

Comparative notes by various authors:

(verses 8.374-378)

See Comparative notes for Verse 8.374.

VERSE 8.378

Section XLVI - Adultery

सहस्रं ब्राह्मणो दण्ड्यो गुप्तां विप्रां बलाद् व्रजन् ।
शतानि पञ्च दण्ड्यः स्यादिच्छन्त्या सह सङ्गतः ॥३७८॥

sahasraṃ brāhmaṇo daṇḍyo guptāṃ viprāṃ balād vrajan |
śatāni pañca daṇḍyaḥ syādicchantyā saha saṅgataḥ ||378||

The Brāhmaṇa who has intercourse with a protected Brāhmaṇa woman by force should be fined one thousand; he who has connection with a willing one, should be fined five hundred. — (378)

Medhātithi’s commentary (manubhāṣya):

Even though one has lost her chastity, if the woman continues to be protected by her father, brother or relatives, — and a Brāhmaṇa has intercourse with her by force, he should be made to pay one thousand.

If however the woman is protected and still chaste, then the man is to be banished and branded, in addition to the fine.

Even if the word ‘protected’ be taken to mean chaste, the Brāhmaṇa would be absolved by paying a thousand ‘banishment’ and ‘branding’ being the general punishment laid down for all cases of immoral intercourse with other women. — (378)

Explanatory notes by Ganganath Jha:

This verse is quoted in Parāśaramādhava (Vyavahāra, p. 317), which remarks that this refers to cases where the woman is not the wife of one’s teacher or friend; — in Vivādaratnākara (p. 393); — in Vyavahāramayūkha (p. 105), as laying down the penalty for forcible intercourse with a chaste Brāhmaṇa woman; — in Mitākṣarā (p. 256) where Bālambhaṭṭī notes that inasmuch as the latter half contains the epithet ‘icchantyā,’ ‘willing,’ — which is in contradistinction to ‘balāt,’ ‘by force,’ of the former half, — it follows that in case the first half refers to the guarded woman, the second half must refer to the unguarded one; the meaning being that if a Brāhmaṇa has connection only once with a willing woman of the same caste, he should be fined 500; — in Smṛtisāroddhāra (p. 330); — and in Vīramitrodaya (Vyavahāra, 144b and 155b), which explains ‘guptam’ as ‘properly guarded’; and adds that this refers to cases of adultery other than those with the wife of the guru or the friend, for which latter other penalties have been prescribed.

Comparative notes by various authors:

(verses 8.374-378)

See Comparative notes for Verse 8.374.

VERSE 8.379

Section XLVI - Adultery

मौण्ड्यं प्राणान्तिकं दण्डो ब्राह्मणस्य विधीयते ।
इतरेषां तु वर्णानां दण्डः प्राणान्तिको भवेत् ॥३७९॥

mauṇḍyaṃ prāṇāntikaṃ daṇḍo brāhmaṇasya vidhīyate |
itareṣāṃ tu varṇānāṃ daṇḍaḥ prāṇāntiko bhavet ||379||

Tonsure has been prescribed as the death-penalty for the Brāhmaṇa; for other castes the penalty would be actual death. — (379)

Medhātithi’s commentary (manubhāṣya):

In cases where ‘death’ has been laid down for the Kṣatriya and other castes, it is to be ‘tonsure’ for the Brāhmaṇa. For instance, for adultery, the non-Brāhmaṇa deserves the death-penalty, — the general rule being that ‘the male shall be flayed.’

The term ‘prāṇāntaka’ is to be explained as prāṇānām antam gacchati or ‘prāṇānāmant?m karoti,’ — that which brings about the end of life; the form being formed with the ‘ṇvul’ affix.

Others read ‘prāṇāntika’; — in which case the affix is ‘ṭhañ,’ — the meaning being ‘relating to death.’

‘For the other castes’ — the Kṣatriya and others, except the Brāhmaṇa, — ‘it is to be actual death.’

Putting to death having already been prescribed before, the present text has been taken as serving the purpose of putting forward the injunction of tonsure and the fine of one thousand, as supplementary to the former injunction. Otherwise, in as much as the death penalty has not been prescribed for the Brāhmaṇa, what would be the occasion for declaring that ‘Tonsure is the death-penalty for the Brāhmaṇa?’

It might be argued that the possibility of death-penalty for the Brāhmaṇa is indicated by the general law that ‘the man should be flayed.’”

But in that case the substitute should have been put forward in that same connection; so that the connection of the two could be clearly perceived. — (379).

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 393), which adds the explanation that ‘for an offence in connection with which death penalty has been prescribed, the Brāhmaṇa shall only have his head shaved’; — in Parāśaramādhava (Ācāra, p. 399); — in Parāśaramādhava (Vyavahāra, p. 159); — in Aparārka (p. 681), which adds that banishment from the city and such other penalties are equal to the death-penalty, so far as the Brāhmaṇa is concerned; — in Vyavahāra-Bālambhaṭṭī (p. 115); — and in Vīramitrodaya (Vyavahāra, 58b).

Comparative notes by various authors:

(verses 8.379-381)

Gautama (8.13). — ‘The Brāhmaṇa who is well-versed in his dharma must not be subjected to corporal punishment; he must not be imprisoned; he must not be fined; he must not be exiled; he must not be reviled; he must not be excluded.’

Baudhāyana (1.18.17). — ‘A Brāhmaṇa, forsooth, shall not suffer corporal punishment for any offence.’

Viṣṇu (5.2-3). — ‘In the case of a Brāhmaṇa, no corporal punishment must be inflicted; a Brāhmaṇa must be banished from the country, his body having been branded.’

Nārada (Theft, 41, 42). — ‘On no account shall the King kill a Brāhmaṇa, though convicted of all possible crimes. He may be banished. The King shall confiscate his entire wealth or leave him a fourth part for himself.’

Bṛhaspati (27.11, 12). — ‘A Brāhmaṇa, though a mortal sinner, shall not suffer capital punishment; the King shall banish him and cause him to be branded and shaved; the Brāhmaṇa who deserves capital punishment shall be compelled to pay one hundred Suvarṇas; one deserving to have a limb cut off, half as much; and one deserving to have the thumb and index finger cut off, half of that.’

Śaṅkha-Likhita (Vivādaratnākara, p. 634). — ‘Even if he has committed heinous crimes, the Brāhmaṇa may be banished, branded, or made to undergo expiations; for the Brāhmaṇa should not be made to suffer bodily pain.’

Hārīta (Do., p. 631). — ‘For the Brāhmaṇa, there is no cutting off of limbs; the Brāhmaṇa is always purified by penances and austerities.’

Yama (Do., p. 636). — ‘For crimes committed by the Brāhmaṇa, the following punishments have been ordained: shaving of the head, banishment from the city, proclamation of his sin, parading on an ass, branding on the forehead.’

VERSE 8.380

Section XLVI - Adultery

न जातु ब्राह्मणं हन्यात् सर्वपापेष्वपि स्थितम् ।
राष्ट्रादेनं बहिः कुर्यात् समग्रधनमक्षतम् ॥३८०॥

na jātu brāhmaṇaṃ hanyāt sarvapāpeṣvapi sthitam |
rāṣṭrādenaṃ bahiḥ kuryāt samagradhanamakṣatam ||380||

Verily he shall not kill the Brāhmaṇa, even though he be steeped in all crimes; he should banish him from the kingdom, with all his property and unhurt. — (380).

Medhātithi’s commentary (manubhāṣya):

‘In all crimes.’ — What is said here should not, on the strength of context, be taken as applying to ‘adultery’ only; it pertains to other crimes also.

‘Even’ — This term means that even though the Brāhmaṇa may have committed all the crimes simultaneously, he should never be made to suffer the death-penalty.

“What then should be done to the criminal?”

The king shall ‘banish him’ — send him away — ‘from the kingdom’ — out of his realm; — ‘with all his property’ — along with all his belongings; — ‘unhurt’ — in body.

“If the property even is not to be confiscated, what would be the punishment to the Brāhmaṇa?”

Some people say that when the text distinctly says that the man is to be banished ‘with his property,’ it is clear that it forbids the imposition of fine. Others however explain the words ‘banished with his property’ to mean that he shall be banished after all his property has been confiscated. — (380)

Explanatory notes by Ganganath Jha:

This verse is quoted in Aparārka (p. 681), to the effect that even though actual death has been prohibited as a penalty for the Brāhmaṇa, yet there are other penalties which are equal to, and substitutes for, that penalty; — again on p. 842, where it notes that the banishment here laid down is meant for cases other than the ‘mortal offences.’

It is quoted in Vivādaratnākara (p. 682); — in Mitākṣarā (2.81), which remarks that corporeal punishment is never to be inflicted on the Brāhmaṇa; this is the general law laid down here; and again on 3.267; — in Vyavahāra-Bālambhaṭṭī (p. 115); — and in Prāyaścittaviveka. (p. 183), to the effect that for the Brāhmaṇa there is no death-penalty.

Comparative notes by various authors:

(verses 8.379-381)

See Comparative notes for Verse 8.379.

VERSE 8.381

Section XLVI - Adultery

न ब्राह्मणवधाद् भूयानधर्मो विद्यते भुवि ।
तस्मादस्य वधं राजा मनसाऽपि न चिन्तयेत् ॥३८१॥

na brāhmaṇavadhād bhūyānadharmo vidyate bhuvi |
tasmādasya vadhaṃ rājā manasā'pi na cintayet ||381||

There is no greater crime on earth than the slaying of a Brāhmaṇa; the king shall, therefore, not even think of his death in his mind. — (381)

Medhātithi’s commentary (manubhāṣya):

This is a declamatory supplement to what has gone before; Than the slaying of the Brāhmaṇa, there is no ‘greater crime,’ — sin leading to greater suffering.

The Ablative in ‘vadhāt’ is to be explained by supplying the term ‘aṅgaḥ.’

For this reason, the king should not even think of inflictin g either death or amputation on the Brāhmaṇa. — (381)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 632); — in Parāśaramādhava (Vyavahāra, p. 59); — in Āparārka (p. 681); — in Mitākṣarā (2.281); — and in Vyavahāra-Bālambhaṭṭī (p. 115).

Comparative notes by various authors:

(verses 8.379-381)

See Comparative notes for Verse 8.379.

VERSE 8.382

Section XLVI - Adultery

वैश्यश्चेत् क्षत्रियां गुप्तां वैश्यां वा क्षत्रियो व्रजेत् ।
यो ब्राह्मण्यामगुप्तायां तावुभौ दण्डमर्हतः ॥३८२॥

vaiśyaścet kṣatriyāṃ guptāṃ vaiśyāṃ vā kṣatriyo vrajet |
yo brāhmaṇyāmaguptāyāṃ tāvubhau daṇḍamarhataḥ ||382||

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