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‘Because the receptacle is more important than the seed’ — i.e., more importance attaches to the soil, — (52) In a case however, where there is a compact, (what happens is as follows.) —

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 579), which explains the meaning to be: — ‘In a case where the owner of the field and the sower of the seed are not parties to an agreement, the benefit accrues to the former and not to the latter.’

It is quoted in Parāśaramādhava (Vyavahāra, p. 3?0), which adds the following explanation: — In a case where the ‘field-owner’ and the ‘seed-owner’ have entered into an agreement that ‘the child born would belong to both of us,’ the child that is bora of the connection between the former’s wife and the latter shall belong to both; but where there has been no such agreement, and yet the latter ‘sows his seed’ in the former’s ‘field,’ and a child is bora, it will belong to the ‘field-owner,’ and not to the ‘seed-owner;’ because the ‘receptacle’ is more potent than the ‘seed,’ as is found in the case of the cow, the sheep and other animals.

It is quoted in Vīramitrodaya (Saṃskāra, p. 656), which adds that ‘phalānabhisandhāna’ means the ‘absence of any such agreement as that the child horn of this connection shall belong to both of us;’so that the son thus born would be ‘kṣetraja’ and not ‘dvyāmuṣyāyaṇa.’

It is quoted in Mitākṣarā (2.127), which adds a note the exact wording of which has been reproduced in Parāśaramādhava (Vyavahāra, p. 350) [see above]. Bālambhaṭṭī has the following explanation of the verbal construction: — ‘Kṣeṭriṇām bījinām,’ ‘from among field-owners and seed-owners,’ if either party has not agreed to the understanding regarding the lending of the ‘field,’ then the child born belongs to the ‘field-owner;’ and the reason for this lies in the fact that ‘the receptacle is more potent than the seed’; — and the reason for this is declared to be ‘pratyakṣam,’ ‘ordinary perception’, i. e., such is actually found to be the case in ordinary experience; — the ‘phalam’ spoken of in the text stands for the agreement regarding the child; — it goes on to add that according to Medhātithi this verse serves to point out the special circumstance under which the ‘benefit does not accrue to the seed-sower,’ which has been stated in general terms in the preceding verse.

It is quoted in Vyavahāra-Bālambhaṭṭī (p. 653); — and in Vīramitrodaya (Vyavahāra, 185b), which adds the following explanation — ‘In a case where there has been no agreement regarding the phala, i.e., the expected offspring, — the child belongs to the woman’s husband, just as we find in the case where, without the knowledge or consent of the owner of the field, if some one sows his own seeds in that field, the outturn of the field belongs to the owner of the field, and not to that of the seeds.

Comparative notes by various authors:

(verses 9.48-56)

(See the texts under 31-44.)

See Comparative notes for Verse 9.48.

VERSE 9.53

Section III - To whom does the Child belong?

क्रियाभ्युपगमात् त्वेतद् बीजार्थं यत् प्रदीयते ।
तस्यैह भागिनौ दृष्टौ बीजी क्षेत्रिक एव च ॥५३॥

kriyābhyupagamāt tvetad bījārthaṃ yat pradīyate |
tasyaiha bhāginau dṛṣṭau bījī kṣetrika eva ca ||53||

If however the seed is given for the purpose of sowing, after the acceptance of a compact, — in that case both, the owner of the soil and the owner of the seed, are considered to be sharers of the produce. — (r>3)

Medhātithi’s commentary (manubhāṣya):

It has been said in the preceding verse that in the absence of a compact, the produce belongs to the owner of the soil. The question that arises next is — In case there is a compact, does the crop belong to the owner of the seed or to both? It. is in answer to this that the present verse declares that it belongs to both.

‘Acceptance of the compact.’ — The term‘Kriyā’ stands for the compact, the agreement, that‘this shall be so and so’; — when such compact has been ‘accepted,’ — ‘it’ — i.e., the ‘seed,’ as is clear from the context — is‘given’ — ‘for the purpose of sowing’ — i.e., for the purpose of the raising of the crop, — then of this crop both are sharers. — (53)

Explanatory notes by Ganganath Jha:

This verse is quoted in Mitākṣara (2.127) which adds the following explanation: — In a case where the ‘field’ is lent to the seed-owner for sowing, on the mutual understanding that the child born would belong to both parties, both of them will be owners of the child, as has been (dṛṣṭa) held by the great sages.

It is quoted in Vīramitrodaya (Saṃskāra, p. 656), which adds that the term ‘kriyā’ here stands for the agreement that ‘the child born would belong’ to both of us;’ and adds that it is only sons born under these conditions that can be called ‘Dvyāmuṣyāyaṇa.’

It is quoted in Parāśaramādhava (Vyavahāra, p. 350), which adds the following explanation: — ‘In a case where the owner of the field lends his field to the owner of the seed, after entering into an agreement with him to the effect that the child born shall belong to both, — the child is held to belong to both the parties.’

It is quoted in Vivādaratnākara (p. 557), which adds that this rule applies also to the case where the ‘seed-owner’ concerned may already have sons of his own; — in Vyavahāra-Bālambhaṭṭī (p..653); — in Nṛsiṃhaprasāda (Vyavahāra 38a); — and in Vīramitrodaya (Vyavahāra, 185b), which adds the following explanation: — A man has agricultural land, and another has, the seed-grains, — the two enter into an agreement ‘let us, combine our resources and cultivate the land conjointly and the out turn shall belong to both of us,’ — in this case the crop belongs to both; similarly when the husband of the wife enters into an agreement with another man that ‘you beget a child on my wife and the child shall belong to both of us,’ the child that is born belongs to both, and having two fathers, he is called ‘Dvyāṃvṣyāyaṇa.’

Comparative notes by various authors:

(verses 9.48-56)

(See the texts under 31-44.)

See Comparative notes for Verse 9.48.

VERSE 9.54

Section III - To whom does the Child belong?

ओघवाताहृतं बीजं यस्य क्षेत्रे प्ररोहति ।
क्षेत्रिकस्यैव तद् बीजं न वप्ता लभते फलम् ॥५४॥

oghavātāhṛtaṃ bījaṃ yasya kṣetre prarohati |
kṣetrikasyaiva tad bījaṃ na vaptā labhate phalam ||54||

If seed, carried away by rain or wind, germinates in a soil, — that seed belongs to the owner of the soil, and the owner of the seed does not receive the produce. — (54)

Medhātithi’s commentary (manubhāṣya):

It has been declared (under 43) that when a man sows his seed in another man’s soil, his seed is lost. And on the basis people may have the following idea — “In the case cited, it is only right that the produce shall be confiscated, since a wrong act has been committed by the man, in that he has tried to obtain surreptitious possession of the land, — otherwise, why should he go about sowing his seed in another’s field? But in a case where the owner of the seed has sown it in his own field, but it has been carried into another field by water or wind, there is no wrong done by the man; in fact he loses his own seed by this transference.”

It is with a view to combat such a notion that we have the present verse declaring that when ‘seed, carried away by rain or wind’ — ‘ogha’ stands for rain, — ‘germinates in another man’s field’, — then, the produce belongs to the owner of the soil.

Thus is the special law established that ‘the owner of the seed does receive the produce’; i.e., ownership of the soil is the more important factor. — (54)

Explanatory notes by Ganganath Jha:

This verse is quoted in Smṛtitattva (II, p. 150); — in Vivādaratnākara (p. 579), which explains ‘ogha’ as ‘current of water’ and ‘āhṛtam’ as ‘earned,’ and adds that this also only serves to indicate the greater importance of the ‘field’; — and in Vyavahāra-Bālambhaṭṭī (p. 521).

Comparative notes by various authors:

(verses 9.48-56)

(See the texts under 31-44.)

See Comparative notes for Verse 9.48.

VERSE 9.55

Section III - To whom does the Child belong?

एष धर्मो गवाश्वस्य दास्युष्ट्राजाविकस्य च ।
विहङ्गमहिषीणां च विज्ञेयः प्रसवं प्रति ॥५५॥

eṣa dharmo gavāśvasya dāsyuṣṭrājāvikasya ca |
vihaṅgamahiṣīṇāṃ ca vijñeyaḥ prasavaṃ prati ||55||

This same law should be understood as applying to the offspring of cows, mares, slave-girls, she-camels, she-goats and ewes; as also of birds and buffaloes. — (55)

Medhātithi’s commentary (manubhāṣya):

Cows and horses, etc. are added here in order to prevent the notion being entertained that the laws laid down here are meant only for children; or it may be regarded as added for the purpose of precluding the notion that they are meant to apply to only seeds, fruits and crops, as is already known among people.

The same law applies to quadrupeds, and bipeds, as also to immovable things.

‘This’ — refers to what has been said in the preceding two verses: — viz. (1) when there is no compact, the produce belongs to the owner of the soil, and (2) when there is compact, it belongs to both.

Cows and the rest have been named only by way of illustration; the same law applies to the cases of dogs, cats and other animals.

“Why then should the declaration in verse 50 have been made?”

It is only a reiteration of the well-known fact that birds and other animals do not form the ‘property’ of men to the same extent as cows do.

‘Slave girls’ — i.e., those acquired by the seven sources of slavery.

‘Offspring’ — young ones born from their wombs. — (55)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 580), which explains ‘eṣa dharmaḥ’, as ‘the principle that the owner of the seed does not obtain the fruit;’ — also in Smṛtitattva (II, p. 150), which adds that the term ‘dāsī’ here stands for the slave-girl married to another slave; the child of such a slave-girl belongs to the owner of the girl, not to that of the father; — and in Vyavahāra-Bālambhaṭṭī (pp. 521 and 574).

Comparative notes by various authors:

(verses 9.48-56)

(See the texts under 31-44.)

See Comparative notes for Verse 9.48.

VERSE 9.56

Section III - To whom does the Child belong?

एतद् वः सारफल्गुत्वं बीजयोन्योः प्रकीर्तितम् ।
अतः परं प्रवक्ष्यामि योषितां धर्ममापदि ॥५६॥

etad vaḥ sāraphalgutvaṃ bījayonyoḥ prakīrtitam |
ataḥ paraṃ pravakṣyāmi yoṣitāṃ dharmamāpadi ||56||

Thus has been explained to you the comparative importance and non-importance of the seed and the womb; after this i am going to expound the duties of women during times of distress. — (56)

Medhātithi’s commentary (manubhāṣya):

‘Importance’ — predominance.

‘Non-importance’ — non-predominance.

This verse sums up the foregoing section, and its second half introduces the next section.

‘Distress’ — i.e., (1) want of food and clothing necessary for the sustaining of life; and also (2) absence of progeny. — (56)

Comparative notes by various authors:

(verses 9.48-56)

(See the texts under 31-44.)

See Comparative notes for Verse 9.48.

VERSE 9.57 [Duties of Women in Times of Distress (niyoga)]

Section IV - Duties of Women in Times of Distress (niyoga)

भ्रातुर्ज्येष्ठस्य भार्या या गुरुपत्न्यनुजस्य सा ।
यवीयसस्तु या भार्या स्नुषा ज्येष्ठस्य सा स्मृता ॥५७॥

bhrāturjyeṣṭhasya bhāryā yā gurupatnyanujasya sā |
yavīyasastu yā bhāryā snuṣā jyeṣṭhasya sā smṛtā ||57||

The wife of the elder brother is, for the younger, a ‘wife of the preceptor’; and the wife of the younger brother has been declared to be a ‘daughter-in-law’ for the elder. — (57)

Medhātithi’s commentary (manubhāṣya):

These two verses (57 and 58) describe the actual state of things, for the purpose of laying down the advisability of ‘Niyoga’ or ‘appointment,’ in times of distress.

‘Elder’ — one born before; — ‘younger’ — one born after; junior in age. — (57)

VERSE 9.58

Section IV - Duties of Women in Times of Distress (niyoga)

ज्येष्ठो यवीयसो भार्यां यवीयान् वाऽग्रजस्त्रियम् ।
पतितौ भवतो गत्वा नियुक्तावप्यनापदि ॥५८॥

jyeṣṭho yavīyaso bhāryāṃ yavīyān vā'grajastriyam |
patitau bhavato gatvā niyuktāvapyanāpadi ||58||

If the elder brother has recourse to the wife of the younger, or the younger brother to the wife of the elder, they become outcasts, even though ‘authorised,’ — except in times of distress. — (58)

Medhātithi’s commentary (manubhāṣya):

Both the younger and the elder brothers become outcasts by having recourse to each other’s wife, except in times of distress, — even though they be ‘authorised,’ — (58)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vyavahāra-Bālambhaṭṭī (p. 522).

VERSE 9.59

Section IV - Duties of Women in Times of Distress (niyoga)

देवराद् वा सपिण्डाद् वा स्त्रिया सम्यक्नियुक्तया ।
प्रजेप्सिताऽऽधिगन्तव्या सन्तानस्य परिक्षये ॥५९॥

devarād vā sapiṇḍād vā striyā samyakniyuktayā |
prajepsitā''dhigantavyā santānasya parikṣaye ||59||

On failure of issue, the woman, on being authorised, may obtain, in the proper manner, the desired offspring, either from her younger brother-in-law or from a ‘Sapiṇḍa’. — (59)

Medhātithi’s commentary (manubhāṣya):

This verse enjoins the practice of ‘Niyoga’, hemmed in by all its qualifications.

‘On failure of issue, the woman, on being authorised, may obtain, offspring in the proper manner,’ — from her younger brother-in-law and others.

This ‘failure of issue’ is the ‘distress’ referred to under verse 56.

The term ‘issue’, ‘antāna’, here stands for the son; as regards the daughter, she is regarded as‘issue’ only when she has been ‘appointed,’ as it is only then that she carries on (‘santanoti’), perpetuates, her father’s family; which is not done by the daughter, in ordinary circumstances.

The ‘failure’ of such issue consists in no son being born, or in a son, though born, dying off, and in the non-appointment of a daughter (by the husband). We shall explain later on that the woman is not entitled to have an ‘appointed daughter’ or any other substitute for the son. She may, therefore bring forth a child only when authorised by her elders.

“Whence is the idea obtained that the authorisation is to be done by her elders?”

It is obtained from other Smṛti-texts. Or, the idea follows from the very name ‘niyoga’, ‘authorisation’. In ordinary parlance ‘authorisation’ is always understood as proceeding from a superior; when the teacher does the teaching, he is not spoken of as being ‘authorised’ by his pupil to do it; in fact it is the pupil that is spoken of as being ‘authorised’ to read and repeat the lessons.

The ‘elders’ meant here are the mother-in-law, the father-in-law, the younger brother-in-law and other persons belonging to her husband’s family, — and not the woman’s own father and other relations. Because if a child is born as the result of this ‘authorisation’, it is only the former who come to be known as ‘with offspring’, and who become benefitted by the after-death rites performed by that child.

“If that were the sole criterion, then, since the child’s maternal grandfather also would benefit by the rites performed by his grand-child, it would follow that the said ‘authorisation’ could be done by him also.”

This has been already answered by the explanation that those persons alone are to ‘authorise’ who would become known as ‘with offspring’ through the child born as the result of that authorisation. Further, when the verse speaks of the ‘younger brother-in-law’ and the ‘sapiṇḍa’, all persons belonging to the same gotra come to the mind. In the Mahābhārata also, in several places, it is shown that ‘authorisation’ can proceed only from the woman’s relations on the husband’s side. It is for this same reason that there is to be no ‘authorisation’ when the husband’s brother’s son is present.

“As a matter of fact, the benefits from the issue occur to only those persons who are ‘authorised’ to beget the offspring; in fact only those persons are entitled to ‘authorisation’ who are eager to obtain the benefits of the issue, in the shape of the love and satisfaction derived from the son. Thus then, no benefits can occur to one who is dead; how then can the child be said to be the ‘issue’ of the latter?”

Our answer to this is that the dead person also does obtain benefits, in the shape of the offering of libations and so forth; and that this is so is clearly asserted in authoritative texts. Though it is true that the dead person has not carried out the injunction regarding the begetting of a child; yet the scriptures clearly lay down that libations are offered to him by the child that may be begotten in the ‘soil’ belonging to him, (i.e. on his wife), according to the law of ‘authorisation’. And from this it follows that benefits for the issue do accrue to the dead father also. How this is we shall explain fully later on.

‘Younger brother-in-law’ — the husband’s brother.

‘Sapiṇḍa’ — a person belonging to the husband’s family. This is what is understood to be meant by the law in other Smṛti-texts regarding the child being obtained from any person ‘of the same caste’.

‘In the proper manner’. — This refers to the rules regarding the man annotating himself with clarified butter and so forth.

‘The desired offspring may be obtained’ — The verbal affix has the force of the Injunctive. The term ‘desired’ indicates the capacity for fulfilling his duties; which implies that in the event of a girl or a blind or deaf son being born, the process of ‘authorisation’ may be repeated. — (59)

Explanatory notes by Ganganath Jha:

(verses 9.59-60)

‘Santānasya’ — ‘Son, and also the appointed daughter’ (Medhātithi); — ‘Son’ (Govindarāja and Rāghavānanda).

“This practice is forbidden in Āpastamba 2.27.2-7; if the husband is alive; but with the widow, it is expressly enjoined by Gautama 78.4 and 28.21-22, and Vaśiṣṭha 17.56. Nārada gives an elaborate account of the formalities. See Jolly, Recht. Stellung S. 18, where the passage is discussed.” — Hopkins.

This verse is quoted in Mitākṣarā (2.127) as propounding the practice of ‘niyoga’ for the purpose of forbidding it under verse 64 et seq. — Bālambhaṭṭī adds the notes: — ‘Samyak,’ in accordance with the scriptures, — ‘īpsitā,’ in the form of a son, — ‘kṣaye,’ in the event of threatened extinction of the family; this means that the practice is sanctioned only under very abnormal circumstances; — ‘vāg-yataḥ,’ silent; — it then goes on to quote Medhātithi.

(59) is quoted in Vivādaratnākara (p. 445) — and both the verses in Parāśaramādhava (Vyavahāra, p. 350); and in Vīramitrodaya (Saṃskāra, p. 737) which remarks that the term ‘vidhavā’ in this verse stands for the girl whose betrothed husband has died after the betrothal, but before actual marriage.

Both verses are quoted in Vyavahāra-Bālambhaṭṭī (p. 700); — in Nṛsiṃhaprasāda (Vyavahāra, p. 38a); — and in Smṛticandrikā (Saṃskāra, pp. 224-225), which explains the meaning as — “The widow, when directed by the father-in-law or other elders, may beget a desired (i.e., male) child from her husband’s (elder or younger) brother, — but only one; although some people hold that she may secure two sons.’

Comparative notes by various authors:

(See below, verse 64 et seq.)

Gautama (18.4-7). — ‘A woman whose husband is dead and who desires offspring may bear a son to her brother-in-iaw. She should obtain the permission of her elders and should have intercourse during her period only. On failure of her brother-in-law, she may obtain offspring from a Sapiṇḍa, a Sayotra, a Samānapravara or from one belonging to the same caste. Some people hold that she should do this with none hut her brother-in-law.’

Do. (28.22-23). — ‘The widow may seek to raise up offspring to her deceased husband. A son begotten on a widow, whose brother-in-law is alive, by another relative, is excluded from inheritance.’

Baudhāyana (2.4.9-10). — ‘After the expiry of six months from her husband’s death, she may, with the authority of her elders, bear a son to her brother-in-law, in case she has no son. They quote the following: — “A barren woman or one who has already borne sons, or one who is past childhearing, or one whose children are all dead, or one who is unwilling, must never be authorised or appointed to do this.”’

Vaśiṣṭha (17.56). — ‘After the completion of six months from the death of her husband, she shall bathe, and offer a funeral oblation to the husband. Then her father and brother shall assemble the elders who taught or sacrificed for her husband, as also his relatives, and authorise her to raise issue to her deceased husband. One should not thus appoint a widow who is either mad or ill-behaved or diseased; nor one who is very aged; — sixteen years after maturity is the period for authorising a widow. Nor shall such an authorisation be made if the male entitled to approach her is sickly.’

Yājñavalkya (1.68-69). — ‘If a widow is without a son, her brother-in-law, or a Sapiṇḍa or a Sagotra, — smeared with butter, shall approach her during her period, being authorised to do so by the elders, for the purpose of obtaining a son for her. He shall approach her only till conception has taken place; doing otherwise, he would become an outcast. The son born in this manner is called Kṣetraja.’

Bṛhaspati (25.12-14). — ‘The Niyoga (authorisation of a widow to raise offspring to her deceased husband), after having been declared by Manu, has been forbidden by himself; on account of the deterioration in the nature of the time-cycles, this cannot he done by all in the proper form. In the Kṛta, Tretā and Dvāpara cycles, men were imbued with austerities and with knowledge; in the Kali cycle a deterioration in the capacity of men has been brought about. Therefore the sons that were obtained by various methods by the ancient sages cannot he obtained by men now, on account of their being without that capacity.’

Nārada (12.80-81). — ‘Should the husband of a childless woman die, she should go to her brother-in-law, through desire to obtain a son, after having received the necessary authorisation from her elders; — and he shall have intercourse with her till a son is born. When a son is born, he must leave her. It would be sinful intercourse otherwise.’

Brahmapurāṇa (Aparārka, p. 97). — ‘On the death of her husband, or on her having abandoned her husband, a woman may beget a son from a man of her own caste. If she is a child-widow, or has been forcibly abandoned by her husband, she shall go through the sacrament of marriage again, with any other man. But this remarriage of women, or the begetting of a son from the brother-in-law, or the freedom of women, should not be permitted during the Kali age; as during this age, men are inclined to be sinful.’

Āpastamba (2.27.2-4). — ‘A husband shall not make over his wife, who occupies the position of a gentilis, to others (than to his gentiles), in order to cause children to be begotten for himself. For they declare that a bride is given to the family of her husband (and not to the husband alone). This is forbidden for the present age, on account of the incapacity of men’s senses.’

Yama (Vivādaratnākara, p. 446). — ‘A man desirous of securing offspring for bis dead brother, may beget a child on his widow; he shall leave her as soon as conception has taken place; he shall never approach her after she has got a child.’

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