23 Vākpāruṣya and Daṇḍapāruṣya

CHAPTER XXIII

VAKPĀRUSYA AND DANDAPARUSYA

( Abuse and defamation; assault)

Vakpāruṣya, dandapārusya, steya, strisangrahana, sāhasa are five titles out of 18 that are concerned with what may be called criminal matters or crimes in modern nomenclature. Vide under sāhasa below.

Nār, XVIII. 1 defines vākpārusya as ‘abusive words that loudly proclaim censure of another’s country, caste, family and the like and that cause mental pain or offence to that man. Kat. (768) defines it as 92 consisting in making the sound ‘hum’ (of defiance) before another or coughing before him, of imitating or uttering before another whatever is censurable according to popular notions. Nār. (XVIII. 2-3) says that abuse is of three kinds, niṣthura ( reproachful such as calling a man a fool or a rogue), atlila (obscene or insulting), tiura (mercilessly severe such as charging a man with such grave sins as brāhmana-murder or drinking liquor ) and that the punishment for each later one is more severe than for each preceding one. Examples of the abuse of country, caste and family are respectively ’the Gaudas are quarrelsome’, ‘brāhmaṇas are extremely greedy’, ‘persons of the Viśyāmitra gotra commit cruel deeds’. Br. (S. B. E, vol, 33 p. 355 verses 2-4) divided vākpārusya into three kinds viz. lowest ( when the country, caste or family of a person is abused or sinfulness is ascribed without specifying any definite act), middling (speaking that the abuser will have sexual inter course with the mother or sister of the abused or ascribing the commission of upapātakas 923 or minor sins to the abused ), highest (charging him with taking forbidden food or drink or mercilessly exposing or ascribing the grave sins to a person ). Various fines are prescribed in the smrtis that depend upon the above distinctions and also on the castes of the abuser and the

  1. T h e restaurant tota forma i musufquaera Yerevi

ETAT. (768) q. by p. 805, a II. p. 6.

  1. For upapātakas vide Mapu XI. 59-66 (such as govadha, adultery), Yaj. III. 234-242, Vippudharmasūtra (37) which contain long lists of them.512

[Vol.

abused. For example, Manu VIII. 267 (=Nar.XVIII. 15-Mataya 227. 66) prescribes the punishments of 100 paṇas, 150 or 200 paṇas, corporal punishment respectively against a kṣatriya or a vaisya or a śūdra abusing a brāhmaṇa and conversely Manu VIII. 268 ( = Nār. XVIII. 16 ) provides that a brāhmaṇa oalum niating a kṣatriya, vaiśya or sūdra should respectively be fined 50, 25 or 12 panas. In the case of the abuser and the abused being of the same varṇa the fine for ordinary abuse is 12 papas, but double of this if the abuse is, according to

Manu VIIL 269 ( = Nar.XVIII. 17), foul (relating to mother, sister &c.). Vide Yaj. II. 206-207, Viṣṇudharmasutra. V.,35. From the remarks of the Sm. C. and the Madanaratna it appears that these discriminating provisions 924 based on the caste 925 and the agcription of minor or grave sins had become a dead letter and were not being enforced by the kings in India by the 12th century A. D. at least. One or two matters, however, may be noted. Manu VIII. 268-272 and 274 are the same as Nar. XVIII. 16-17, 22-24. Even the truth of an imputation926 afforded no complete exemption e. 8. if a person angrily calls & man a thief (who was once convicted of it) or speaks of him as blind or cripple, the former would be fined at least one karsapana (Manu VIII. 274 = Nar. XVIII. 18). Kaut. (III. 18) provides in this case three papas 92n as fine and Viṣṇudharmasatra (V.37) two panas. When the

____924. एवं जातिगुणयोविधिषिशेषदर्शने तथा प्रथममध्यमोत्तमभावेन विधाभिहित वाक्पारण्याम्तर्गतभेददर्शने तथा निष्ठुराश्लीलतीवत्वादिवाक्पारुण्यविशेषदर्शने तथा श्रुताभि जमदेशकर्मशरीरपितुमात्य धिक्षेपविशेषदर्शने तमिवन्धनोच्चावचदण्डविधायिकाः स्मृतयो यपि वचःसमुच्चयकार समुचिता अस्माभिस्तु संप्रति तदानुष्ठाननिष्ठप्रजाशिक्षका भाबाद वृथा अन्धविस्तारापतिर्मा भूदिति न समुचिताः । स्मृतिच. II. p. 327. The words from भुताभिजन up to संपत्ति occur also in स.वि. p. 479, which winds up as ‘संपति तवदानाभावार अन्धविस्तरत: (०.!) किमर्थमित्युपरतम्। यद्यपि पाक्पारण्य दण्डपारम्पपोषियभेदेनाम्पेपि दण्डाविशेषाः स्मर्तृभिरुपदिष्टाः सन्ति तथापीदानीन्तने राजभिः प्रजाक्षोमप्रसोन तापदण्डस्य कर्तुमशक्यत्वावत्युपयोगाभावेन निरर्थकमन्वपिस्त रभयायामास्माभिः संग्रहीताः।(मदनरल at the end of वण्डपाण्य). . ।

  1. Vide तापमाण 14.6, 6. for an abuse as to varma ‘वत्सथ मेधा तिधिध काण्यापास्ता संघरस मेधातिधिराक्रोशवनाह्मणोसि मात्र हति।।

  2. Compare sec. 499 of the Indian Penal Code, exception one, wbich provides that the mere truth of an imputation does not exonerate a man from the charge of defamation, unless the imputation is uttered for the pablic good.

  3. शरीरमकातितासिजनपदानां शरीरोपषादेन काणखादिभिः सत्ये त्रिपणो वामियोपादे पपको दण्डः । शोभनाविवन्त इति काणमादीनां तिमिन्दायां बादशणो द शा III. 18, .

III)

Punishment for abuse

513

imputation is false all provide for a fine double of that pro vided in case the imputation is true. Ironic praise of a man (such as describing one who is blind of one eye as one endowed with a beautiful eye) is made punishable by Kaut. (III. 18). To warn 928 a man against associating with a person who is guilty of a grave sin or of theft does not entail punishment if the truth of the imputation be established (Kāt. 776). Aco. to Kaut. and Kāt. (775) the king was to award only half the fine prescribed if the accused said ‘what I uttered in abuse was done through ignorance, carelessness, rivalry or friendship; I shall not again do so'929. A person who abuses a king doing his duty was to have his tongue cut off or forfeited all his property (Nar. XVIII. 30, Yāj. II. 302). Ap. II. 10. 27. 14 prescribed for a sūdra that abused any one of the three higher castes leading a religious life the punishment of the cutting of the tongue 930.

Dandapūruṣya (assault). Kaut. II. 19 begins his treatment of this topic by saying that it comprises touching, threatening to strike and actually striking another 931. Nār. XVIII. 4 defines it as injuring the limbs of another with the hand, foot, weapon or other means (such as stones) or defiling or causing pain by (bringing) ashes and similar substances in contact with another. The Mit. on Yāj. II. 212 explains that even causing injury to animals and trees would fall under this title. Nār. XVIII. 5-6 provide that assault may be of three kinds viz. mild, middling and highly punishable according as a person merely makes preparations to assault or attacks without any qualm or causes a wound and that this crime can further be divided into three kinds according as the object attacked is low in value or middling or high. A verse from the Parisista ( quoted by Sm. C. II. p. 327 and V. P. p. 370) states’ whoever causes pain or draws blood, wounds, breaks, cuts off, pierces (the limbs or bodies) of living beings is guilty of daṇdapāruṣya’. According to Bs. (S. B. E, vol. 33 p. 357 verse

  1. 4 furate afarta (oferta 1) I FUT # FUIT

E

R E NEUT. (776) 4. by w II. p. 327, f. 1. p. 258, Compare exceptions 9 and 10 of scc, 499 of the I. P. C.

  1. HTETEYATTA at freut sit aifa :1 gada qar ya

u . 775 q. by fa. t. p. 246, fares. p. 70 (both ascribe to TT. and Tay). f . II. p. 327, s. #. 229, 84.. p. 384 ascribe to 39776 alone. FATEHPATETT Turquet: 1 puta III. 18.

  1. Para paret

s i staT: 1 3179. 17. . II. 10. 27. 14. 931. preprost Formato rafat I spestre III, 19.

65

$14

[Vol.

  1. dandapāruṣya 932 consists in striking (a person) with the hand, with a stone, a club, ashes, mud, dust or a weapon. The Mit. on Yāj. IL 212 following Nar. XVIII. 7-12 lays down certain propositions about both abuse and assault. A person who does not return abuse or does not assault when abused or assaulted, deserves to be commended ; if he returns the abuse or assaults in return, the person who began the quarrel is to be dealt with more severely than the other. When two persons 933 attack each other and there are no means for finding who began the quarrel equal punishment is to be awarded to both; but when two quarrel he who began the quarrel or he who persists longer than the other is to be fined more than the other party and lastly if men of the lowest 934 castes such as svapāka, meda, cũndala, hunters, elephant riders, vrātyas and dāsas ( slaves) assault respectable men and ācāryas then they are to be punished ( whipped) by good men then and there, but if such punishment is not possible, then the king should award corporal punishment (of various kinds according to the nature of the crime) and should not take fines from them, since they are the foulest among men and their wealth also is foul. Kāt. (783 ) and Br. (S. B. E. 33 p. 359 verse 15 ) are to the same effect. The several smrtis lay down various punish ments for various kinds of assaults but no useful purpose will be served by going into details. Kāt. 935 ( 786 ) provides that just as in abuse punishnients depend on the castes of the abuser and the abused 80 also in assaults higher punish ment is to be awarded if the attacker is of a lower caste than the person attacked or lower punishment if the person attacked is of a lower caste. Manu VIII. 286 and Uśanas 936 lay down that the punishment for the offence should be commensurate with

  1. True frenatges: 1 argu ari area . q. by pa. t. p. 259.

  2. T eme: FTE HA: FET: 1 315 **ilsguru grca: Foren forest Hill. g. by otrk p. 812. F. t. p. 275.

  3. Steg PET rat perut aratot i fa tataarat e arsa

FA: # #Trat. q. by 319 p. 813, h. 5. p. 278 ; T URHUT YT: T Front OT: mi a renta *977 grapat va I. t. D. 277.

  1. बाक्पारण्ये यथैवोक्ताः भातिलोम्यामलोमतः । तथैव दण्डपासण्ये पास्या दण्डा TUTTAR #TR. 786. q. by 107. A. III. . 418. f. 7. 269,

936.99 lat Fa: F ra MT HETATA: 1 9 r aflate formele ore धारणम् । उशनस् q. by स्मृतिच. II. p. 328 (which explains कार्य प्राणिषु पाण्यन्तरेक rufe *),

HI)

Punishment for assault

515

the pain or injury caused by the offender to a man or beast. A few examples may be set out. Probably the oldest reference to fines for assault in Sanskrit literature is contained in the Taittiriya Samhita 937 II. 6. 10. 2: ‘He who threatens to strike a brāhmaṇa shall be fined with a hundred (cows or niṣkas ? ), he who strikes a brāhmaṇa shall be fined with a thousand; he who draws blood from him shall not behold the pitss for as many years as there are particles of dust mixed with the blood that falls on them’.

This passage is interpreted in Jai. III. 938 4. 17 as being a recom mendatary injunction ( puruṣārtha ) to all at all times to desist from assaulting a brāhmaṇa. Gaut. ( 21. 20-22 ) and Manu XI. 206–207 appear to take the Tai. S. passage differently and refer the figures of 100 and 1000 to years. Kaut. III. 19 prescribes various fines for various kinds of assaults. Br. (S. B.E. 33 p. 357 verses 2,3 and 7 ) says that if a person throws ashes or the like at another or beats him with the hand the fino should be one māsa, but if he strikes with a brick, stone or stick the fine should be two māsakas ; this however applies when both are of the same caste, but if he assaults a woman who is another’s wife or a person of a higher caste, the fine may be higher and higher. For one who bruises the skin of another or draws blood by assault the fine is one hundred paṇas, and for him who causes a wound by removing some flesh the fine is six māsakas and he who causes breaking of bones should be banished (Manu VIII. 284 = Nār. XVIII. 29). Kāt. prescribes the highest amerce ment for cutting off the ear, the lip, the nose, the foot, the eye, the tongue, the penis, the hand, and the middle amerce ment for causing injury (or wounding). Gaut. XII. 1, Kaut. III. 19, Manu VIII. 939 279, Yaj. II. 215, Br. provide the punishment of the cutting of that limb with which a sūdra strikes a person of the three higher castes. And the Mit. on Yāj. II. 215 applies by analogy the same rule to a vaisya striking a ksatriya. Manu VIII. 280 extends the same punishment to a śndra for

937, यो माहामायापारात तं शतेन यातयात् , यो निहनसं सहस्रेण यातयात, यो लोहित करवधावत्यस्कंध पासून संग्रहासावतः संवत्सरान पितृलोक न प्रजानादिति । तस्माद् men areta a partir sutart F. II. 6. 10.2.

  1. pieliigftat . III. 4. 17. $**’s conclusion is: FAPTEUTU ब्राह्मणस्यायं प्रतिषेध उक्तः, न दर्शपूर्णमासमतेनैव नायगोरणादि कर्तव्यमिति ।

  2. शूबो द्विजातीनभिसन्धायाभिहत्य च धाग्दण्डपारध्याभ्यामड़मोच्यो येनोपह YTI. XII. 1; tampA re FY OTTET I sail faren: 1 fosfarroa: I et III. 19; tardar Patreftert

Ta wray ni *N . g. by Free, II, p. 328.

516

[Vol.

merely raising the hand or a club to strike one of a higher caste. Manu VIII. 281-283 (Nar. XVIII. 26-28 ) provide that a person of a low caste defiantly sitting on the same seat with one of a higher caste was to be first branded on the waist and then banisbed or bis hips were to be gashed ( in such a way that he might not die ), that a sūdra defiantly spitting on the body of a brāhmana had his lips cut off or a sūdra voiding urine or fæces on a brāhmaṇa had those offending limbs cut off, or a sūdra defiantly seizing a brāhmaṇa by the hair or the feet or beard or neok or testicles would have both his hands cut off. If several conspire and strike a person who is alone, each one was to be sentenced to twice the punishment prescribed for the offence (Yāj. II. 221, Kaut. 940 III. 19, Viṣṇu Dh. 8. V. 73). Kaut. II. 19, Manu VIII. 287, Yaj. II. 222, Br., Kāt. 787, Viṣṇu Dh, S. V. 75-76 provide that the king should make an offender pay a fine and also the expenses of medical treatment and diet till the wound is healed up and the person attacked is able to do his usual work (vide note 613 above). For mischief to property 941 and for killing or maim ing animals, Kaut., Manu, Yājñavalkya and others provide various fines. For example, Kauṭ. III. 19 prescribes that when property of small value is destroyed by a man he should be punished with fine equal to the value of the article and should be made to restore the article or its value to the owner; but in the case of articles of substantial value the fine is double of the value. Manu VIII. 288 is of similar import. Yāj. II. 223 provides varying fines if a person wrongfully causes damage to a wall by knocking it (with a club), or pierces it or divides it into two or demolishes it and makes the offender pay to the owner the cost of restoring it. Manu. VIII. 296–298, Yāj. II. 225-226 prescribe fines for causing death or injury to animals of small value (such as goats) and big animals like elephants, horses and cows. Yāj. II. 227-229, Kaut. III. 19, and Kāt. 793 provide fines for causing loss by injuring or felling trees, shrubs and creepers. Yāj. I. 214 holds 92 that if a person throws mud,

  1. RETT E PER Fagott FE: I SUITE III, 19.

  2. प्रमापणे प्राणमता दासत्पतिरूपकम् । तस्यानुरूपं मूल्यं वा दमादित्यनवीन्मनुः॥ TEUT. 792 9. by 977. #1. III. p. 425, f. . 284; Taperiat T er GUT I TUT TYT YA: Firef T ATT UTTOTTA AS VIII. 285. This last is cited As aceras in . T. p. 284.

  3. Etter at

A

M 199. II. 214 ; ftatuensquet: muity fem: I HATCHE MET: I Sehpw III. 19.

11 )

Right of private defence

517

dust or saliva or filthy things on another or strikes with his feet, he should not be fined if he is under the influence of intoxicants at the time or is not in his right mind or does it through mistake, while Kauṭ. III. 19 prescribes half of the usual fine in such cases. ..

An important question is how far the right of private defence of person or property was recognised by the dharma śāstra works. This subject has partly been dealt with in H. of Dh, vol. II, pp. 148–151 in connection with an ātatāyin (a desperate man) who is an incendiary or a poisoner or is armed with a weapon, is a robber, one carrying away another’s wife or seizing by force ( a field ). Although there is great diversity of views about killing a brāhmaṇa ātatūyin, there is no difference of opinion as to repelling with force culminating even in death an ātatāyin of any other caste. Gaut. VII. 25 allows even a brāhmaṇa to arm himself when his life is in danger. 943 Baud. Dh, S. II. 944 2. 80, Manu VIII. 348-349 lay down that brāhmaṇas and vaiśyas may oppose with force when they are prevented from doing their religious duties by felong or when there are disturbances caused by invasion or the like, for saving their own lives, for preventing the seizure of their cows or other wealth or for protecting women or brāhmaṇas. The Mit. 945 on Yāj. II. 286 remarks that these rules of Manu are applicable when there is no time to report to the king or when delay in opposing violence will mean loss or ruin. According to Kāt. 946 ( 800 ) no blame attaches to a man who kills wicked men that are about to kill another, but when they have desisted from their attempt, they should be arrested and not killed. Aparārka (on Yāj. III. 227) remarks that persons are to be regarded as ātatāyin while they are about to set fire or to kill or they are in the act of setting fire or killing and the like, that where it is not possible to prevent them from doing what

  1. TATO unift Targe i. VII. 25.

944, TT mot ar puriat ma i rarat preparant sro VASTUHOT! #. . II. 2. 800 forsirang TWITTET I AE VIII. 348, which the ****(ms) explains pāterarne ut t the piano anatak ज्यते तत्र ।… तथा दक्षिणानां सङ्गारे गोग्रहणनिमितके युद्धे । नीषिमाम्युपपत्तौ दुर्वलहिंसानि पारणे धर्माद्धतोनन मष्यति।।

  1. यदा तु राज्ञो निवेदनेन कालविलम्बनेन कार्यातिपाताशा तदा स्वयमेव जारावी. your ou fa ire sanitary PI FANTE. OD 9. II. 286.

  2. urta para sa a fount for TET TETT TEUTO *1971 T: 79. 800 q. by rate. II. p. 315.

518

[Vol.

they intend to do except by killing them there only the texts allow killing ; but that where it is possible to prevent them by merely wounding them with a weapon or stick, killing them would be an offence. 947 Medhātithi 947 a on Manu VIII. 348 differs from this and allows the killing of a desperado even after he has carried out his purpose and not only when he is about to carry it out or is in the act of carrying it out. The view of the Mit. on Yaj. II. 21 is that one has a right to oppose and kill another in self-defence, in defence of women and other weak people, who cannot defend themselves against a murderous or violent attack and that even if a wrongdoer of the brāhmaṇa caste was killed in the exercise of such right there is no punish ment at the hands of the king and the prāyaścitta (for killing a brāhmaṇa) is a light one. Similarly a man can kill with impunity animals having claws, horns or fangs or horses or elephants if they attack a person (Kat. 805 q. by Sm. C. II. p. 316).

  1. अनच वर्तमाग्निदानादिव्यापार एवाततायिन उच्यन्ते । तव्यापारनिवारणं च पत्र पधमन्तरेण न सम्भवति तत्रैव तवधायज्ञा। यत्र तु दण्डनादिप्रहारमात्रेणैव शक्यो निवारपितुं तत्र तु तद्वधो दोषनिमितमेव । अत एवोक्तं वृहस्पतिना-आकृष्टस्तु समाक्रोशं. स्तासितः प्रतिताडयन-इत्यादि। अपरार्क p. 1043. For the right of private defence of person and property compare the above dicta with sections 99 to 105 of the Indian Penal Code.

947a. आयान्तामति वचनादातशत्रोहन्तुमभिधावन धारान पा जिहीर्षन हन्तव्यः कृते तुदोषे किमन्यत्करिष्यतीत्युपेक्षा इति अवते सदयुक्तं यतः प्रकाशमभकाशं चोति वक्ष्या । समानो होतो करिष्यन् कृतांश्च सृष्ट (? दृष्ट) श्चेदिति । तस्मादायान्तमित्यहवादा कर्डमागतं. कृत्वा पागतमिति । आततापित्वाचासौ हन्यते न च कृतवचन आततायित्वमुपैति (!नच कृतवत आततायित्वमति)। मेधा. on मा VIII. 348; अतश्च प्राणादय आततायिनश्च भास्मादित्राणा हिंसानभिसन्धिना भिवार्यमाणाः प्रमादायदि पिपेरंस्तत्र लघुप्रायश्चितं राज वण्णाभापति निश्चयः। मिता. on या. II. 21. The मदनररन quotes both these views and also that of स्मृतिच. II. p. 315.