कल्पान्तरे विश्वासटिप्पन्यः

CHAPTER XXV

STRĪSANGRAHAŅA (Adultery or unlawful intercourse

with a woman ).

The Mit. ( on Yāj. 11.976 283 ) states that sangrahana means the unlawful coming together of a man and a woman for sexual enjoyment. Bp. (S. B. E. 33 p. 365 verses 1-2) says that sinful 977 sangrahaṇa is of three kinds, viz. brought about by force, deceit or sensual passion. The first (which is rape ) occurs when intercourse is had in a secluded place against the will of a woman, or with a woman who is intoxicated or is disordered in mind or is under a mistake or when she raises a cry; the second occurs when a woman is brought to one’s house by some trick or pretence, an intoxicant (such as Dhatura) is administered to her or her mind is brought under control ( by chants or otherwise ) and sexual intercourse takes place; the third occurs when intercourse takes place by conveying (passion ) to each other by means of the eyes ( glances) or by employing a go-between and when the parties are drawn to each other by the temptation of beauty or of wealth. This last is again of three kinds acc. to Vyāsa and Br. ( S. B. E. 33 p. 365-66 verses 6-8 q. by Sm. C. II. p. 8) viz. trifling, middling and grave. The first is characterised by winking at a woman, smiling at her, sending a go-between, touch ing her ornaments or clothes; the second by the sending of flowers, unguents, fruits, incense, food, clothes, and indulging in private talks ; the third is characterised by lying on the same bed, dalliance, kissing and embraces. Stri sangrahaṇa by force (that is rape ) is really included under

Sharing rura: #agora I FATT. on T. II. 283 ; HTETI ATTEIT HET TG464 Frappa: i fuae. II. p. 8.

P o fatto fatto parte a AirAETTI - हमस्या यक्रियते मत्सोन्मसममत्तया। प्रलपरया च रहसि बलात्कारकतं हतत् । छमना गृह मानीय खावा मधकार्मणम् । संयोगः क्रियते यत्र तनुपधिकृत विदुः ॥ अन्योन्यचक्षुरागण WhiteTI KUTUMIA ST TETTI TE. q. by p. 854, ph. II. p. 8, 54. 9. D. 397, p. t. p. 379, 4TT. 1. III. p. 462. There are many various readings. The स्मृतिच. explains कार्मण as कर्मणा वशीकरणम्. Compare section 375 of the I. P. C. with the first kiad, sec. 493 with the 2nd kind and sections 497, 498 with the 3rd kind.532

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sāhasa, 978 as stated by the Madanaratna, the V. P. pp. 396 397 and others. The punishments for rape were very heavy. Bp. (8. B. E. 979 33 p. 366 verse 10) states that if a man commits rape on a woman of the same caste, he was to forfeit all his property, to have bis penis and testicles cut out and was to be paraded on the back of an age, that if the woman raped was of a lower caste, then half of this punishment was to be awarded and if she was of a higher caste, he was to be sentenced to death together with confiscation of all property. Kāt. (830) prescribes that when 980 a man has forcibly had sexual intercourse with a woman capital punishment is to be inflicted inasmuch as it is a violation of (proper) conduct. When sexual intercourse was had by deceit the man was puni. shed with confiscation of all property, with branding on the forehead of the sign of the female private parts and banishment from the town (Bṛ, in S. B. E. 33 p. 366 verse 981 11). Here also the rule of Bṭ. cited above (about the reduction of sentence according to the caste of the woman concerned) applies. In the case of rape and sexual intercourse by deceit the woman was not at all punished 982 but she had to undergo a penance (prāya ścitta) of kṣcchra or parāka for contact with a male other than her husband and till she performed the prāyaścitta she was to be kept well-guarded in the house, was to remain dirty (i. e.

978, तत्र बलात्कारकृतं त्रीसंग्रहणं साहसान्तर्भूतत्वात् तत्प्रकरणे अधुनैव दर्शितम् ।

AY. Compare sec. 376 of the I. P. C. which prescribes transportation for life as the maximum punishment for rape. Vide Russell on Crimes (9th ed, 1936) vol. I. pp. 613-614 for the ancient law of England (wbich provided death sentence and the sentence of castration and loss of eyes) and modern law which provides penal servitude for life as the maximum. ___979. सहसा कामयेधस्तु धनं तस्याखिलं हरेत् । उत्कृत्य लिङ्गवृषणौ भ्रामयेर्दभेन तु ।। दमो नेयः समायां तु हीनायामधिकरततः । पुंसः कार्योऽधिकार्या तु गमने संपमापणम् । बृह. q. in f . II. p. 320, 67. 4. pp. 396-397, 987. AT. III. 466.

श्रीषु वृत्तोपभोगः स्यात्मसह्य पुरुषो यदा। बधे तत्र प्रवतेत कार्यातिक्रमण हि तत् ॥ 91191. 830 q, by far. II. p. 320, *. 4. p. 397, 74, #. p. 244. All these three works differ as to the circumstances in which this verse applies.
JH FTHTOFI TET HIETTA: I graet gwefa: # 7. q. by refer. II. p. 320. ft. I. p. 389.
waruntita rat at anvendt tiṣt et quasi) पजीविनीम् । कारयतिकृति कुन्, पराकमा समे गताम् । हीनधोपयुक्ता या स्याज्या पाया थवा भवेत्।ह.q. by स्मृतिच. II. p. 321, वि. 1. 400. For कुच्छ and पराक see RY. XI. 212 and 216. The farat. II. p. 320 says: ‘Turrachatod नार्याः सम्पयते । ततश्रासन्यवहार्यता अनापि दण्डयायामिव समाना। सा प्रायश्चित्तेन कचिद

पैतिकचिस्याह हरपतिः । अनिच्छन्ती &c."

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caste (than the half of this in thale In the case of

not to deck herself or apply or use perfumes &c.), to lie on the ground (not on a bed-stead or couch), was to receive bare main tenance. After performing prāyaścitta she was restored to her former position. Acc. to Yaj. II. 286 and Br. (S. B. E. 33 p. 366 verse 12), for adultery (in which there is consent) the highest fine is prescribed for the male in the case of a woman of the same caste, half of this in the case of a wonian lower in caste (than the paramour), but when adultery is committed with a woman of a higher caste the male shall be put to death and the woman shall have her ears and the like cut off. Vide Shakespeare’s Othello IV. 1, where Othello exclaims ‘I see that nose of yours but not that dog I shall throw it to’. There were other sages who were humane and opposed to the punishment of disfigurement by way of the cutting of the ear or the nose. Yama 982a states that in the case of a woman guilty of adultery at her will, there was to be no punishment of death or disfigure ment, but only abandonment. Kāt. ( 487 ) lays down the general rule that in all offences women should be sentenced to half the fine in money which is prescribed for a male and that when the punishment is death for a male the punishment for a woman would be cutting off a limb (vide note 626 ).

Nār. (XV. 73-75) holds 983 that sexual intercourse with the step-mother, mother’s sister, mother-in-law, the paternal or maternal uncle’s wife, father’s sister, a friend’s or pupil’s wife, sister, sister’s friend, daughter-in-law, daughter, the wife of one’s vedic teacher, a woman of the same gotra, a woman that has sought protection, with the queen or an ascetic woman (pravrajitā) or a wet-nurse or a virtuous wife (sādlwi) or a woman of a higher caste is incestuous and the punishment to be prescribed for this crime is the excision of the penis and no less. Vide Manu XI. 170-71, Kaut. IV. 13,984 Yāj. III. 231-233, Matsya

982a. Foram 71 AT AFTTHAFT FUTTI ARATOTO W… T FT च बैरूप्यं वधं श्रीणां विवर्जयेत् । स्त्रीणां महापराधे धधं कुर्वन विसर्जनमेव तासां कुर्यादित्यर्थः। सायं कर्णनासायाविकर्तनं तदपि भ; न कदाचित्कार्यमित्यर्थः । न चैव श्रीवधं कुर्यात

ra h at eta I a. II. p. 246; vide . #. III. p. 477 also. He

___983, माता मातृष्वसा श्वश्रूर्मातुलानी पितृण्वसा । पितृष्यसखिशिष्यत्री भगिनी तत्संखी स्नुषा । दुहिताचार्यभार्या च सगोत्रा शरणागता । राज्ञी प्रव्रजिता धात्री साध्वी वर्णो समा च या । आसामन्यतां गत्वा गुरुतल्पग उच्यते । शिस्नस्योत्कर्तनं तस्य नान्यो वण्डो poftuati ATC XV. 73-75. The fa. 5. p. 392 remarks: HRT poftuarith पितृपत्नी । गुमाविषयमेतत्.

marit inftraff h art ratefoff at grand firefi vara: Francja " TAT E ai un IV. 13,

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purāṇa 227. 139–141, which latter (three) prescribe excision of the penis and death by way of punishment (except for a brāh mapa) and expiation and for the woman ( if she was a consent ing party ) death sontence. Bșhad-Yama III. 7, Ap. (in verse) IX. 1 (Jivananda od.) and Yama (Anandāśrama) 35 prescribe that there is no expiation except that of entering fire for incest with mother, teacher’s wife, sister or daughter. It is remarka ble that Kaut. 985 and Yāj. (II. 293 ) prescribe only a fine of 24 papas for adultery with a female ascetic, while Nār. XV. 74 and Matsya 227, 141 deem it a most heinous offence. The explanation probably lies in the fact that Kaut and Yaj. refer to female ascetics of the lowest castes not following the orthodox religion, while Nār. refers to nuns of a higher order. Vide Manu VIII. 363 also. For forcible intercourse with a prostitute against 986 her will Kaut. IV. 13 and Yāj. 11. 291 prescribe a fine of 12 and 24 panas respectively. For unnatural offences or offences against the order of nature, Kauṭ. IV. 13, Yaj. II. 289, 293, Viṣṇu Dh. S. V. 44, Nār. XV. 76 provide fines of 12, 24, 100, 500 paṇas 987,

Manu IV. 134 ( = Anuśāsana 104.21 = Mārkandeya-purāṇa 34. 62-63) forbids a man to have sexual intercourse with an other’s wife and states that there is nothing so detrimental to long life as that. There are stray indications in the Vedic literature about sexual intercourse outside marriage. Vide H. of Dh. II. pp. 637-639. In Rg. I..92. 4 ( adhi pesāinsi vapate nstūr iva) there appears to be a reference to a danoing girl or hetaira. Wives hating (or proving false ) to their husbands are believed to go to Hell in Rg. IV. 5. 5 (patiripo na janayo durevāḥ ). In Rg. II. 29. 1 the sage prays to the Adityas’ remove away from me sin as a woman who gives birth to a child in secret removes it’( are matkarta rahasūr-ivāgah). The gambler (in Rg. X. 34, 4) states others have intercourse with his wife’ (anye jāyām pari mrsantyasya). The word puiscali occurs in Vāj. S. XXX. 22. We have already seen ( H. of Dh. II. pp. 576, 1098 ) how in the Varuṇapraghasa (one of the Caturmāsyas) the wife of the sacrificer had to confess if she had a lover and how even after

a carusfequit qua: 1 FIAT G RATIS SITE IV. 13.
Kurster: HTTP rearquit que: I wa# IV. 13; AUT ra जिता नारीपणकष्टा तथैव च । इत्यगम्याश्च निर्दिवास्तासातु गमने नरः । शिश्नस्योरक that TTTET U T I HAPO. 227. 141.

987, format peon: FTE : THYATTAVAT TO Aya restorant frutorak : I suora IV. 13.

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she confessed to having had one she was allowed to co-operate in the sacrifice on undergoing an expiation. After a man perform ed the solemn sacrifice called Agnicayana he was enjoined (Tai. S. V. 6. 8. 3)988 not to approach a sūdra woman and after he performed Agnicayana twice he was not to approach another’s wife ( H. of Dh, vol. II. p. 1255 ).

The punishment for sangrahaṇa (rape and adultery) varied according to the caste of the man and the woman, according as the woman was married or unmarried and according as she was guarded (guptā ) or unguarded. Vide Gaut. XII. 2, Vas. XXI. 1-5, Manu VIII. 359, Viṣṇu Dh. S. V. 41, Yaj. II. 286, 294, Nār. XV. 70 (as to higher or lower caste of offender), Gaut. XII. 3, Manu VIII. 374-378, 382-385, Kauṭ. IV, 13 ( about offence against guarded or unguarded woman), Manu VIII. 364-370, Yāj. II. 285, 287, Kaut. IV. 12, Nār. XV, 71-72 ( about maidens ). Further the ancient sūtras and smrtis prescribe more severe sentences than later smṛtis. Details of these matters are passed over here for want of space and as being now of academic interest only. But some examples may be noted. Gaut. XXIII. 14-15 and Manu VIII. 371 prescribe for an adulteress death by being devoured by dogs, but Yāj II. 286 softened the rigour of this. Āp. Dh. 8. ( II. 10. 26. 20-21) prescribed the penalty of cutting the penis and testicles for the male if guilty of adultery with a married woman, but only confiscation of all property if he committed adultery with an unmarried woman. But Yaj. II. 288, Manu VII. 366, Nār. XV. 72 went so far as to say that if a man had sexual intercourse with a maiden ( of the same caste) who encouraged his advances, then there is no offence punishable by the king, but he was to bestow ornaments on her, honour her and must marry her.

It has further to be noted that Yaj. II. 290 and Nār. (XV, 79 ) 989 make it punishable to visit a dasi kept by a man in his own house or outside and Yaj. prescribes the fine of 50 paṇas for so doing. Vide H. of Dh. vol. II. pp. 637-639 about prostitutes. But Manu VIII. 362 states that the rules making conversation with others’ wives in lonely places punishable does not hold good in the case of the wives of actors, singers

नानिधित्वा रामामुपेयादयोनो तो धास्थामीति न द्वितीयं चिस्यान्यस्य निय

w mit frei HOT #. V. 6. 8. 3-4.

Sri Traaye 1: Tata Tatra F taur weT: ATTUTT: #714 XV. 79.

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and those who live on the earnings of their wives, since they themselves introduce their wives to others and make them mix among men ( while they themselves remain concealed ).

Stripundharma ( duties of husband and wife). Most of the matters falling under this head have been dealt with in H. of Dh. vol. II. pp. 556-592. The liability of the husband or wife for the debts of the other has been already dealt with under ynādāna. The rights of partition, inheritance and maintenance will be discussed later on under dāyabhāga. Nār. XV. 1 defines this title of law as that in which the rules of the marriage of women and men and other related matters are described. Under this head Nār, speaks of the essential ceremonies of marriage, the rules about selecting a bride and a bridegroom, restrictions as to the caste of the bride, the guardians for marriage, faults or defects in a proposed bride or bridegroom, the forms of marriage, women called punarbhū and svairiṇi, the practice of niyoga, illicit sexual intercourse, punishment of women for adultery, re marriage, wrnasankara, mixed castes. In IX. 1 Manu promises that he will dilate upon the obligatory duties of man and wife, whether they are staying together or apart. Manu IX. 2 holds that the first duty of the husband and the males in his family is to keep women dependent and under their control if they become attached to a life of pleasure and Nār, XVI. 30 states that even women of good family come to ruin by independence. The next most important matter acc. to Manu IX. 5 and Br. (S. B. E. 33 p. 367 verse 2 )990 is to guard women against improper attach ments however trifling, since if they go astray they bring sorrow to both families (of the husband and of the father). Acc. to Harita,991. Saṅkha-Likhita,992 Manu (IX. 7, 9) and others the husband has to guard the wife from the approaches of other men in order to ensure the purity of the issue and by guarding her the husband guards his reputation, family, soul and his dharma,

Amenra erat faceret ot p rūs i samarreta: greita: prestar faenal .g. by freq. II. p. 239, 14. 4. p. 405, a. t. p. 411.

991, E9Urostret HK I TATIT : IT TOGETTAT: तन्तुमाशे देवपितृयज्ञनाशः, यज्ञमाशे धर्मनाशा, धर्मनाशे आत्मनाशा, आत्मनाशे सर्वनाशः। Fotot ernafiret ante opoff rara IETOA q. by T. II. p. 239, a. 1. . 410, 78. 9. . 405, T .

furatsfoa: forama na sisi tur formatory पत्समभव देतेमवेत एव जायते । एवं योनिरव बलवती यस्मावर्णाः संकीर्यन्ते । शालिखित q, by p. t. p. 414, fot . II. p. 241, 49. *. p. 408 (at p. 405 reads m

Telefa).

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since a woman gives birth to a son similar to the male with whom she consorts or on whom she sets lier heart during the days after the monthly illness. Here there is some anticipa tion of modern Eugenics. Manu IX 10 was quite clear that women could not be completely guarded by confining them with force in seclusion, that their minds must be occupied in family work as stated by him in IX. 11 and by Bṭ. (S. B. E. 33 p. 368993 verse 4), that the husband must try to deserve her regard and affection and show her honour (Manu IX. 22-24, 26, Yāj. I. 82). Divorce has been already dealt with in H, of Dh. vol. II. pp. 619-623. Vide Selections from Peshwa’s daftar’ vol. 43 p. 112 where the divorce of a woman (ghatasphota) is ordered because the husband was really a converted Mahomedan who had been illegally admitted to caste after an incorrect method of expiation.

oto ni

mioar: witant grapet

993, wracas F WITH TR. q. by T. 9. p. 409.