INSTITUTION OF JUSTICE
MARRIAGE AND FAMILY
As per the definition of marriage and family given in the Prthu constitution, 'purusha', the head of the family, included the individual (atma), the woman he had won (jaya) for himself and their offspring (praja). This stand was based on the postulate that constant intercourse between a man and his wife led to the latter imbibing his traits and outlook and their offspring too sharing these. So, this nuclear group, husband, wife and progeny might be treated as one personage, purusha. This was the view of the vipras, the scholars who had withdrawn from domestic activities and marital life and become teachers of the masses. (9-45)
The vipra as he proceeded on his mission of education of the masses left behind his wife and children after he was convinced that she would rear them in the same mould as he would have if he had stayed back. [Commentators seem to have missed this note.] Such a wife (left behind by the vipra) was not to be treated as one set aside by or separated from her husband. She was playing the role of the father also for her children.
A husband could not sell or divorce his wife. The editors declare that this was the social law (dharma) based on morality as the patriarch, Prajapati, propounded it. Manu Svayambhuva must have proclaimed this law when he was yet the Prajapati, chief of the people, of Brahmavarta. (9-46) This law ruled out Asura (feudal) type of marriage, which was sale of the girl by her parents to the groom and his parents. The sages who drafted the Manava Dharmasastra must have reverted to the law that the earlier Prajapati followed.
Of the eight types of marriage then in vogue, Svayambhuva objected to marriage by enticement of the girl. It was known as Paisaca marriage. The other type, which that Prajapati disapproved, was the Gandharva marriage as it permitted either of the couple to repudiate the marriage and this affected the interests of the progeny adversely.
Marriage has to be permanent and free from the note of sale. The comments given by Jha are not to the mark. Manusmrti bans sale of wives, a feature of Asura marriage even as it outlaws purchase of wives. The issue of whether the remarriage of a woman so sold to another may be approved does not arise here, for the very act of selling a human being is condemnatory. [It is however interesting to note that Gandharva marriage was the only type besides the Brahma marriage that found favour with all the ten sages who edited Manusmrti.]
The editors of Manusmrti were eager to ensure that social and economic commitments were of a binding nature and not retracted. The shares agreed upon by the partners on gains from an economic activity are not to be rescinded later by any of them. Similarly, the promise made by the father or brother of the virgin (kanya) to hand her over to the groom was binding and not retractable. This applied to all promise of gifts. The decision once taken is construed to have been taken, or the promise once given is construed to have been, given after taking into account all aspects of the deal or acts and is legally valid and binding, sakrta. (9-47) The new law of marriage prescribed that a girl should be given away in marriage within three years after attaining puberty and as a virgin. When once she had been promised to another and given away she became the property of the groom and her erstwhile guardian lost control over her even if the groom had not taken her away.
The father or brother was however free to rethink if there was no promise given that involved economic commitments and if the act of giving away had been aborted during the period between intent to give and act of giving. The groom became the husband when he took the hand of his wife and led her away. The father ceased to be the guardian thereafter. The father could not select another groom for his daughter after he had promised to give her away. Kanyadanam was a fulfillment of this promise. Manusmrti takes pains to make it morally and legally binding for a father to fulfill his promise. There is no indication that the father treated the daughter as his property.
EIGHT TYPES OF MARRIAGE
Dharma marriage involved the giving away of the daughter in marriage duly decked and provided with wealth (to ensure her dignity and protection) to the groom selected by her legal guardian. This guardian might be the father (or brother) or a noble (deva) or a sage (rshi) or a chief of the people (prajapati). These were known as Brahma, Daiva, Arsha and Prajapatya marriages. In the case of the latter three marriages, the bride was not necessarily a virgin. Gandharva, Asura, Rakshasa and Paisaca marriages were not accepted as Dharma marriages.
In the Gandharva marriage where the girl married a man of her choice no economic commitments were involved.Asura marriage was sale of the girl to the groom by her parents or brothers or by herself. Marriage by conquest or by abduction, which involved use of force, was known as Rakshasa marriage. Marriage of a girl without her or her parents explicit and conscious consent was called Paisaca marriage.
There could be no divorce or remarriage in dharma marriages. [It is unsound to interpret that religion discriminated against women and denied them their rights.] These marriages were intended to ensure that the girls were married to men with good character and were looked after well and that their needs for sex were met within the frame of stable marriage. This basic approach has to be appreciated. It should not get distracted by the interpolations effected later in the Manusmrti. Some interpolations are innocuous and some are silly while a few are deliberate distortions. Many are the result of a gross ignorance of the intents and experiences of the earlier social legislators.
Dharma marriages could not be set aside by any state edict. The state or the local courts could step in only when members of the families or the parties to the marital union of a non-dharma (that is, kama or artha) type were involved in disputes that threatened the stability of the marriage and the welfare and security of the offspring. Gandharva and Paisaca marriages were of the kama type and Asura and Rakshasa of the artha type. The State could interfere in these types.
Owners of cows, mares, she-camels and slave-girls used to hire bulls, steeds, male camels and men to produce offspring on these. But the offspring belonged to these owners and not to the procreators. Even so a child born of sexual union with the wife of another would belong to that husband, the later editors explain. (9-48) [Of course, it may be felt to be derogatory to women to compare them to the animals used to procreate progeny. The earlier editors were eager to ensure that wives were treated with respect and not as such animals or slave-girls.]
If one sows the seeds with him in the field of another as he does not himself have a field to cultivate, the crop would belong to the owner of the field and not to the owner of the seed. (9-49) This law must have been enacted to protect the interests of the landowners when the tenants or workers claimed sole right to the crop as they had brought the seed had not received it from the landlords. They also claimed that the soil had not contributed anything to the quality of the crop produced. These disputes in the sectors of agriculture and cattle rearing are drawn upon to establish that the husband would be the owner of the children born to his wife. This was feudal (asura) approach and was decried.
The editors of Manusmrti were required to set down the law with respect to extra-marital relations and the progeny thereof. Marriage required that the husband protected his wife and his children by her. But if she conceived by another man, the child born would have to be accepted by the husband as his and not discarded. The begetter had no claim to that child, as the woman was not his wife. There were some highly potent men (like Rsyasrnga) who were engaged to beget children for impotent husbands. Though such potent men might have produced children by many women they could not claim any of these children, as none of these women were their wives. This law was based on the practice in the sector of animal husbandry where a single bull was enough to impregnate several cows. (9-50) This verse stresses the futility of sex outside marriage if the man wanted to beget a successor by it.
In the agricultural sector too a similar practice prevailed. (9-51) This was especially so when there was no agreement between the owner of the seed and the owner of the soil. The latter claimed that the soil or receptacle where the seed sprouted was more important than the seed itself and that this receptacle (womb) belonged to him and not to the owner of the seed. This law was valid, as there was no compact between the two earlier to the contrary. (9-52) The owner of the seed is distinguished from the husband who looked after his pregnant wife. The owner of the soil in this context is the cultivator though he has procured the seed from another.
The editors of Manusmrti had to take into account the diverse practices, orientations and expectations that were present in the larger society and provide for them in the new law of marriage. Among the Gandharvas who were not engaged in economic activities or organized as clans some fathers to obtain male successors got their unmarried daughters impregnated by guests. The male progeny had to be left behind by their procreators. He was known as a son born to an appointed daughter and this practice was described as putrikadharma. It still survives.
Jha translates the verse (9-53) as: 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. Burnell read it as: But both the owner of the seed and the owner of the land are known in this world to be (equal) possessors of all that which is produced in consequence of a special agreement respecting the seed. This rule was later interpreted to mean that both the procreator and the impotent husband of the mother could claim the offspring and that the offspring had to honour both as his father and perform the rites on their death and succeed to the wealth of both. It circumvented the adverse consequence of marriage to an impotent man while being required to respect the ban on women seeking divorce from such men and resorting to remarriage.
NIYOGA, ARRANGED INTERCOURSE
(9-54 to 76)
Often men were carried away by the charms of the wives of others and had illicit union with them. The progeny of such union or affairs would belong to the husbands alone and the procreators would have no claim to these. The verse (9-54) reads: If the 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. The women are not blamed for the failure of the husbands to guard them. During times of turmoil when women (fields) were left unguarded such transgressions by men took place and when order was restored the pregnant women had to be accepted by their husbands and their progeny too had to be accepted. Neither could be discarded.
This rule was seen to be applicable in the agrarian sector and also in that of animal husbandry, the editors point out. (9-55) Both these sectors of the commonalty of the core society were advised to extend the application of this rule to the rules that set down the rights and duties of the progeny and those of their fathers and progenitors. In no event should the mothers be expelled as adulteresses and their progeny as products of adultery. These rules were applicable when these wives had not deliberately sought sex with other men even though their husbands were potent and could have sex with them. In this section, the editors have described the comparative importance of the seed and the soil. (9-56) It would appear that later Smrtis were not so rigorously rational as the editors of Manusmrti were.
The postulates pertaining to the comparative importance of the seed and the soil covered a wide area, agriculture and animal husbandry and also the limits set by marriage within which man and woman could indulge in sexual union that might result in the birth of children. But there were orientations and socioeconomic needs that led to the women being compelled by the elders of their marital homes to have sexual union with specified persons other than their husbands to produce especially male heirs for the property of these husbands. It may be noted here that most marriages were arranged marriages and not voluntary union between lovers. These arranged marriages were intended to enable the girls to become wives and then mothers and the boys to become fathers.
As the wives and husbands stayed loyal to each other even if the wives got impregnated by other men under extraordinary circumstances or as desired by their husbands, the progeny thus produced were not adversely affected. The husbands protected these progeny and did not discard the mothers as guilty of adultery. But there were circumstances when the wives were widowed too early and their sex needs were left unfulfilled as remarriage of widows was banned. Besides their husbands had no heirs to perform their last rites and the property of these deceased husbands were in danger of passing into the hands of others who were not members of their paternal family. There was a danger of claims to such property being declared to have lapsed and the property annexed by the state. Niyoga is to be examined cautiously in this context, as it is a section in the Manusmrti that was distorted to promote the purposes of the British colonial rule in India.
Often the son-less widow was required to stay back in her marital home and bear by her brother-in-law, a male heir for her deceased husband. The puritans who stood by rigorous monogamy did not approve this practice. A younger brother was expected to respect the wife of his elder brother as the wife of his preceptor. The elder brother was required to treat the wife of his younger brother as his daughter-in-law. (9-57) Hence it was not permissible for one to have sexual intercourse with the wife or widow of his elder brother or that of his younger brother.
[Some suffragists, who try to locate faults in Manusmrti, are more eager to secure legitimacy for promiscuity than to ensure that women are respected and their interests protected. Social scientists would be serving the society better by suggesting methods to ensure that marriages remained happy and stable than by catering to the expectations of the libertines who flaunt the slogan of liberty of the individual.]
If the elder brother or the younger fails to respect this rule he is declared to be an outcast (patita), as one who had failed in his social duties. This casting out of the family would take place even if the husband had permitted the prohibited relation and nominated (niyukta) his brother to have intercourse with her in his place. Such expulsion may not take place if the prohibited union had taken place under extraordinary circumstances. (9-58) These extraordinary circumstances are covered in the rules pertaining to niyoga. These rules must have been later additions to the original text of Manusmrti but were not necessarily devoid of reasonableness or rationale.
A woman (stri) belonging to a noble family might be appointed (niyukta) to have intercourse with a noble person (deva) who was her protector or with a person who had equal rights as her husband to offer and receive oblations (that is who was a sapinda). She must have not given birth to any child (by her husband). This intercourse was restricted to the purpose of giving birth to a child (who would be treated as that of that husband). (9-59) [In later days, the term, deva came to be used to refer to the younger brother-in-law.] This was in fact a practice among the elite rather than among the commonalty. The elite were eager to maintain genetic purity and for that purpose even resorted to inbreeding, which could only affect the progeny adversely.
The members of the elite did not permit union with persons of lower ranks. The procreator should be of the same rank as that of the recognized father. While the procreator could be from a higher social stratum, it was to be ensured that he was not from a rank lower than that of the lady and her husband. It is hence not proper to interpret that a woman was permitted to have intercourse with a younger brother-in-law. Medieval commentators had lost sight of the rules governing social relations during the Vedic and early post-Vedic periods.
Niyoga could be resorted to only if the lady had no issue at all, whether male or female. It was intended to protect not her interests but those of the elite nuclear family where a man became owner of the property only if he had a son. A son-less husband hence would require his wife to beget a son for him by resorting to niyoga, by sex with a person in a noble family or with a sapinda, a brother.This practice was irrelevant to the commonalty, which had only collective property. Niyoga cannot be discussed correctly without taking into account the above economic factors.
The lady whether a wife or a widow or a spinster could not resort to niyoga unless she was nominated (niyukta) for this purpose. Modern commentators have been deliberating on who could grant this authorization. Obviously she could not act on her own and no female member of her marital family, even if she was an aged woman, could require her to resort to it. Among the elite, the eldest member of the family was not engaged in economic duties and stayed apart from it as a disinterested member (udasina).
Hence only a sage who was not a member of the family and had no axe to grind was expected to advise her to resort to it. She could not be coerced to submit to what has been described by many as an animal practice that treated the woman as no better than a cow or a mare.She could not be asked to submit to a union that was an affront to her dignity. The term, stri is used to indicate her status as a responsible adult and housewife who could determine by herself what was in the best interests of her family and herself. She was not a slave or mistress(dasi).
The debate on to whom the benefits accrue appears to have side-tracked the issue. Would the progeny by niyoga be honoured in the society? Would the lady who had crossed the bounds set by monogamy be respected? These issues were pertinent to the middle class, which emulated the elite. As niyoga was relevant only to share in private property and the right to head a nuclear family with such private property, it was not an issue before the masses.
The interpretation that a woman may be required to submit repeatedly to sexual union even after conceiving the first child and until she delivered a desired child indicates a crude exploitation of the widow or the wife of a weak husband. Such distortions are indicative of decadence set in motion by feudalism and are reprehensible. The editors of Manusmrti while conceding the need for a man to have a male heir to pay oblations to him after his death and succeed to his property and carry out his fathers duties and carry on his cherished traditions did not want the permission granted to resort to niyoga to be misused. It was meant to beget one son only and sexual union must end when this objective was fulfilled. (9-60) [Sexual union was to be had only at night according to the normative practices.]
A child born by this practice was called a kshetraja (conceived by and brought up in the proper field, kshetra) and was to be treated on par with a child, a dharmaja, born by the normative and institutionalized practice. Jha translates the next verse (9-61) as: Some people, learned in the subject, admit on the basis of propriety, of a second procreation on women, perceiving as they do that the couples purpose of authorization is not (otherwise) accomplished. This verse must have been incorporated later and further diluted the non-rigorous approach recommended by the earlier social legislators.
He draws attention to the view held by the cultured people that a man with one son is as good as sonless. He however overlooks the stand of the magistrates who implemented the social code, Dharma. While a man became the head of a family only when he had a son to perform his sraddha rites and succeed to his wealth and status, the wife did not become eligible to function as the second head of her nuclear family until she had given birth to two children (mithuna). The permission that was granted to her to resort to niyoga should be able to meet the needs of the husband as well as those of the wife. (Vide also my earlier work, Foundations of Hindu Economic State, an analysis of Kautilyan Arthasastra on this issue.)
The rules pertaining to niyoga were applicable only to the elite and the cultured sections of the middle class among whom monogamy was the norm. Among the masses, the woman and the children born to her were the property of the husband. All of them helped him, as labourers and the question of succession to property did not arise among them. The masses did not set much store on marital loyalty and genetic purity of the offspring, as the only wealth they had was these human beings. [This does not mean that they are alleged to have been indifferent to sexual morality.]
Niyoga rules permitted the elder brother to have sexual intercourse with the widow of his younger brother. But after the objective was accomplished he should cease to have sex with her. She should treat him as her teacher and guide (guru) and he should treat her as his daughter-in-law. (9-62) It would appear that niyoga rules permitted a woman to have intercourse with the younger brother of her husband when the latter was alive but too old and weak to procreate. But a woman could be required to submit to the authority of the elder brother only if she was the widow of a younger brother.
In both cases, it was union for meeting certain cultural (dharma) purposes (with or without economic, artha, motives) and not for lust (kama). If the two persons, man and woman, who are nominated to have union under the rules of niyoga violate them and act from carnal desire (kama) both would become outcasts, treated as having fallen (patita) from status and expelled from the family and denied any share in its property, it was warned.(9-63) Intercourse with ones daughter-in-law was prohibited and so too sharing ones bed with ones teachers wife.
Those belonging to the higher social classes (dvijatis) should not nominate a widow who is an independent woman (nari) to submit to niyoga. She could not be asked to submit herself to any person against her will.Only ladies (stri) belonging to noble families were expected to treat the needs of their husbands as more important than their personal propensities. They did not give importance to sexual pleasure. They cared for socio-religious and socio-cultural orientations of their marital homes and the economic interests of the latter. The other members of their families did not exploit them.
But the independent women (naris) did not share this loyalty and hence it was not advisable to nominate them for the purposes governed by the niyoga rules. They were free to marry again if widowed. By nominating her the provisions of sanatana dharma would be violated, it is warned. (9-64) While the stri, a lady belonging to a respectable clan (kula) gave priority to the status which she had as the guardian of its repute and identity, the nari asserted her right to seek sex with any man of her choice. She did not feel required to respect the orientations of any family or the susceptibilities of any person including her own issues. Laws have to take into account this distinction while describing the rights of women.
Burnell has translated this verse as: A widow woman should not be commissioned by twice-born men (to have carnal intercourse) with any other man (than her husband), for those commissioning (her to have carnal intercourse) with any other man would violate the eternal law of right. He failed to note that the editors of Manava Dharmasastra were not ready to drift too far from the provisions of the earlier concept of social regulation, dharma. Men belonging to the three higher varnas (Brahmana, Kshatriya and Vaisya) were free to marry women who did not belong to their respective varnas and these women might quit at will. They were not treated as wives eligible to share the same rights as the wives from the same classes (savarnas). Such wives if widowed had no claims on their marital homes. Marriage had to be only within the same varna if the other members of the husbands family were to recognize it.
Savarna marriages were of course mostly marriages arranged by the parents (Brahma type) or by the sages (Arsha type) or by the nobles (Daiva type) or by the chiefs of the people (Prajapatya type) and were hence dharma marriages. But even savarna marriages were not invariably arranged marriages. The wife in the latter case was treated as but a nari and not referred to as stri entitled to handle the wealth of the family. This was the traditional law, Manusmrti explains. It needs to be pointed out that the issues on which Jha and his contemporaries had differences of opinion are not relevant to the rules governing niyoga as observed under the traditional code, sanatana dharma. These rules were in force when the scheme of mixed classes, samkaravarnas, had not yet been finalized. Neither anuloma marriages nor pratiloma marriages were approved. Only savarna marriages were approved and monogamy was the norm.
Niyoga was not earlier permitted in any form. When it was permitted, it had to be confined to the cultural elite that valued chastity and genetic purity. The arguments cited by Jha pertain to later times when there was widespread decadence. Some medieval commentators had argued that this verse prohibited calling upon the widow to have sexual intercourse with any one whether a younger brother or an elder brother of the deceased husband or with any outsider. Others claimed that it did not prohibit the husband from requiring her to resort to niyoga to provide a son who would ensure heaven for him by performing the necessary sraddha rites and that she could not disobey his command. It may be stated that all these commentators have overlooked the distinction between nari and stri.
Niyoga intercourse amounted to remarriage of widows. This was not permitted in any formula. In fact it was not even mentioned in any holy formula related to marriage, the next verse (9-65) asserts. It has been argued by some that it has to be hence deemed that it is not prohibited. If so, one could marry his widowed sister-in-law. It needs to be stated here that this non-prohibition did not amount to her being compelled to marry her brother-in-law. While a lady of a respectable family might accede to the decision taken by the elders or to the request made by her husband before his death, a woman who had on her own accord married the deceased husband could not be bound by such a decision or request. She was free to marry any one of her choice as her second husband.
The practice of niyoga came to be introduced during the reign of Vena in his kingdom. This practice that was prevalent in cattle rearing as pasudharma was introduced by ignorant twice-born (dvijas) among commoners (manushyas). [Bhrgu and other sages were against the introduction of this practice. Vena was an unpopular autocrat and was overthrown in a revolt led by the Bhrgus and burnt to death by his enraged subjects, especially by the agriculturists. They later elected Prthu, an agriculturist chieftain as their ruler.] (9-66) It would appear that while the agriculturist communities did not approve niyoga, the pastoral people did not object to it. But it was revolting to scholars and legislators like Bhrgu.
In the past (the later editors recall) that overlord who claimed to be the senior among all the Rajarshis of the Mahi region brought about mixing of classes, varnasamkara, his mind beset with lust. (9-67) Vena was accused of having caused the disappearance of his father, a Rajarshi, saintly king of Anga (a province to the southwest of Mathura near Delhi) and usurped the throne. Vena had subordinated all the chiefs of Madhyadesa (the agrarian tracts on the banks of River Mahi) and distorted the provisions of the Rajarshi constitution followed by them and his father. It is inaccurate to translate the term, Rajarshi as Royal Sage. He was a Saintly King, a scholar who headed the State under the Rajarshi constitution propounded by Samkara, a noble (deva) belonging to the Rudra School of the Vedic times. Vena, a pretender to the status of a Rajarshi, gave approval to the practice of niyoga, which was not distinguishable from remarriage of widows and in the case of other wives, from extra-marital relations and polyandry. These practices were an anathema to Bhrgu and other social legislators who had drafted the Manava Dharmasastra.
These great sages expected the rulers to implement this socio-cultural constitution based on four socioeconomic classes, varnas. They recognized only the four basic varnas, Brahmana, Kshatriya, Vaisya and Shudra and marriages within the same varna. This was expected to give permanence to the four classes, intelligentsia, politico-military order or state, bourgeoisie and proletariat and ensure social, political and economic stability for centuries. Unapproved sexual relations and marital alliances led to the delinquent partners being cast out of the family and the community and to their progeny being declared as belonging to samkaravarnas, mixed classes. They could not be ordained and were denied the rights that the members of the four basic varnas had. Vena was accused of having permitted inter-varna marital relations and recognizing the samkaravarnas. He might have done so to claim legitimacy to his sexual alliances, which violated the codes of rigorous monogamy and savarna marriages.
Since then, whenever any one through folly authorizes a woman (stri) whose husband is dead to beget children, him the pious men (sadhava) censure. (Jha) (9-68) Buhler read it as: Since that (time) the virtuous censure that (man) who in his folly appoints a woman, whose husband died, to (bear) children (to another man). A widow was expected by the members of her marital home not to have sexual relations with any one. If any of them asked her to resort to niyoga and she did so, that person was censured by the pious among these members though the state might have permitted niyoga, remarriage of widows and non-savarna marriages. This was the response of the cultural elite to Venas edict.
Even the husband could not direct his wife to remarry after his death. Niyoga was not different from remarriage of widows, they held. (9-69) But the editors of Manusmrti were not cruel though decrying lust. They recognized the need for a girl to get her sexual urge and propensity for motherhood fulfilled and stipulated that it should be within the framework of marriage which was an alliance between two families of equal rank and not a compact outside them. Hence a widow who was yet a virgin was to be permitted to marry her brother-in-law who was of a noble nature and would be her protector. This approach was elitist.
She was not to be passed on as an unmarried woman. She was to be presented and accepted as a widow dressed in white clothes. The brother-in-law who was in the status of a noble protector might have sex with her only till she gave birth to a child. (9-70) Her desire for sex and for the feeling of motherhood was respected and was to be fulfilled. But she was not eligible for the status of a mother who could control the property and finances of her nuclear family on behalf of and on par with her husband. She was accepted as a daughter-in-law of the family and protected. She was not discarded as an inauspicious woman. But yet she was but a remarried woman and this carried odium.
The parents of such a virgin-widow had no role to play in this marriage. She belonged to her marital family from the day they had given her away for the first time and there could be no return of that gift to her parental family and hence there could be no second gifting away of a virgin. The brother-in-law and other men are not to be deceived. They are to be told that it was open remarriage of a virgin-widow. Only a brother-in-law could marry her and no other man. This was to ensure that her parents did not pass her on fraudulently as an unmarried woman. (9-71)
The elite would not appreciate clandestine marriages and fraudulent ones. Manusmrti warns that even after having accepted the virgin in due form (that is, decorated if unmarried and in white robes if she has to undergo remarriage as a virgin-widow), the groom may repudiate her if she is blemished or diseased or corrupt or betrothed by deception. (9-72) These were enough grounds for divorcing a wife. It was not advisable to conceal the facts if the bride was physically or mentally handicapped. Not only a bride but the groom too could be repudiated for such fraud. But rarely did a wife or a bride dare to do so. A father or brother who gives away a virgin concealing her defects is treated as a wicked person. (9-73) It is implied that the deceived husband could launch criminal proceedings against him. Several marriages failed because the parents of the girls were not honest.
It is unsound and unjust to throw the blame on the groom and his parents in every case of repudiation of marriage. Widow re-marriage was not prohibited but was cautiously avoided by the elite families and so too men shrunk from marrying virgin-widows for often the facts about the girl were hidden from the groom. It needs to be noted that only the higher classes came under this rule. The commoners did not feel it necessary to abide by these clauses and were not concerned with their purposes.
The editors of Manusmrti were aware that marriages got derailed often when the husbands were away for a long period from their homes. For want of subsistence (vrtti) even a virtuous lady (stri) of a noble family might become corrupt. Hence it was prescribed that a man might go abroad on work (karya) only after providing for her maintenance. (9-74) There is no need to indulge in attempts to define what should be the purpose and whether foreign travel is permitted or not. The warning to merchants and officials on tour is simple. They are not to take away all the money while going out on tour, leaving their wives high and dry. The irresponsible husbands would rue if their wives resorted to selling their bodies to earn their livelihood.
Of course, the husband could not question an independent woman (nari) why she had sexual union with other men. The nari had married him either as an equal partner by the provisions of Gandharva marriage (voluntary union) or had accepted payment for sexual services (Asura type). In either case she had not surrendered all her rights. The other two types (rakshasa and paisacha) of non-dharma marriages did not close the door for liberty for the woman who had been forced by the kidnapper or seduced by the dishonest person to escape from the clutches of that man and seek sex or marriage with a man of her choice or the willing groom selected by her parents.
The lady of a noble family was expected to control the property and also the finances of her home and her husband should not leave her helpless. Many went abroad on speculative enterprises and risked all the property. This was likely to upset marital relations.Conjugal loyalty required economic security for the wives. The editors advise that when the husband has gone abroad after providing for her livelihood the wife should abide on restraint, that is, should not fritter away the money given for it. If he has gone away without providing for it, she may seek a means of livelihood, which is not objectionable. It should not bring disrepute to her family. Of course, the editors could not permit prostitution as a means of livelihood even in distress. (9-75)
Could a wife left alone and unprovided for proceed to remarry? She might, but she had to wait for eight years for the return of that man (nara) who on his own went away for a work whose purpose was socio-religious (dharma). If the purpose was education, studying or teaching (vidya), she had to wait for six years. If it was to earn wealth (artha) or was for pleasure (kama), she had to wait only for three years. (9-76) This rule does not mention the period in the case of a soldier or an official who had to go abroad on duty. The above rule was applicable only in the case of the wives of men who had voluntarily gone abroad. The elaborate discussion engaged in by commentators on the ifs and buts with respect to this rule is unnecessary. The patience of the wife is not to be taxed too much. She might remarry or not.
Even as the husband went away as a free man (nara) on the pursuit of his personal objective, she would be free after the specified period of waiting as a nari to determine the course of her life. The issue would then be the fate of the children born to the two when they were together. There are variations among the smrtis regarding these periods of waiting for the return of the husband. Many of them tax the Brahman wife too much. Manusmrti mentions the purposes of travel and does not classify the husbands on the basis of their varna. It is more rational than these later smrtis. This clause deals with the rights of the nari who was as free as her spouse, the free man, nara, was. (Neither was bound by the rules of their clans and communities.) It does not govern the relation between, the husband as a head of the family or as one of its members, (that is, as a purusha or as a manushya) and the housewife (stri) who had as much a responsibility to the family as her husband has. The editors of Manusmrti recognized that marital duties were not to be so rigorous as to chain a man to his home.
RECALCITRANT WOMEN, SUPERSESSION, DIVORCE
(9-77 to 87)
Not all wives were found to be loyal to their husbands. Some strayed during the absence of their husbands from home and acquired wealth by improper means. The husband on his return might be annoyed at the change in her conduct. But he was not permitted to repudiate her immediately for it was a lapse on his part, though his absence from home was for justified purposes. For, he had left his wife unguarded and exposed her to a wayward life and made him a cuckold. He had to give her one-year to reform her conduct and attitude. If she did not show signs of return to the path of duty, he would be free to wrest her property and cease to cohabit with her.
She had misused the wealth he had placed at her disposal and acquired wealth by improper means. She was found to be untrustworthy with respect to the acquisition and use of wealth as the second head of the family. She was also suspected of having had sexual relations with other men during his absence. He had to however allow her a chance to return to the right path. (9-77) The wife might have developed hatred for husband because of his indifference to her feelings and needs. Hence he was not free to divorce her on the ground of adultery or of frittering away the wealth.
If the wife disregards her husband, that is, refuses to cohabit with him alleging that he is diseased or is mad or is drunk, she may be deprived of ornaments and luxuries and abandoned (parityaga) for three months.The husband was not entitled to have union with the wife without her consent. She was however not allowed to use the wealth at her disposal to entice other men.The denial of her sex needs for three months was expected to bring her around if her complaint was not so serious as to warrant separation or divorce. (9-78)
Marriage as an institution has given the husband more rights but has not totally enslaved the wife. If she shows aversion to union with him because he is mad or is expelled from the community for sex offences and immoral conduct (patita) or is afflicted with foul disease (on account of sex with prostitutes) the husband is at fault and he is not entitled to divorce her on the ground of failure to discharge her duty as a wife. He is also not entitled to deprive her of her ornaments. This rule is applicable also when he is alleged to be impotent or sterile. The fault is obviously with the man and she is not to be faulted for refusing to have sex with him. (9-79)
Manusmrti was not unreasonable. Wives too were often at fault. Some were drunkards and some were dishonest. Some were unfavourable and harmed the interests of their husbands. Some were diseased. Some were mischievous and wasteful. Such wives deserved to be superseded, the editors of Manusmrti held. (9-80)It was supersession and not divorce. Supersession meant divesting the wife of all rights and duties as the second head of the family and vesting them in another.
It needs to be remarked here that Manusmrti took into account the factors leading to social decadence and tried to stop the rot without casting the blame on the women alone or the men alone. The alleged discrimination in social laws against women was marginal rather than absolute. Discrimination against women has been present in all societies and during all epochs. Wives were not permitted to divorce their impotent or diseased husbands and remarry. They could only be exempted from yielding to the demands of the latter and were warned against seeking union with other men. Men too were not permitted to expel the unruly and dishonest wives from their homes. There could be only supersession of wives. The barren wife shall be superseded in the eighth year; in the tenth year, she whose children die off; in the eleventh she who bears only daughters; but immediately she who talks harshly. (Jha) (9-81). (Later interpolation.)
It is obvious that men expected their wives to be polite to them and to others and not to retort even if scolded unjustly. This verse could not have given the husband the right to divorce even a shrew. Men were unhappy if their wives did not conceive and tended to marry again to beget offspring, especially sons. But the waiting period was reasonably long. The barren wife or the sonless one could only be superseded and not divorced. She had to be maintained as a wife but lost her right to be the foremost among his wives. She could not complain if he neglected her. Preference for a male child was present in all social ranks. It is an attitude that cannot be easily wished away. It is implicit that the status of the mother of the son and heir apparent, as the second head of the family, even if superseded, could not be lost to the second wife of her husband. (Vide my earlier work, Foundations of Hindu Economic State for an outline of Kautilyas stand on this issue.)
Bigamy was not as unpleasant as divorce. An invalid wife who worked for the welfare of her marital family and was of noble conduct could be superseded only with her consent. Though the husband could marry another woman to meet his sex urge, he was not permitted to divest this first wife of her rights and duties as the second head of his family. [The husband was the first head and the wife, the second head. She was in charge of the family property and controlled its expenses.] She was not to be disgraced. (9-82)
Most wives resented supersession. If a wife who was superseded left the house in anger, she could be brought back and confined in the house. She could not claim to be a free woman (nari) as she was only superseded. If she refused to accept the decision of her husband and live as a subordinate to his second wife she could be divorced (tyaga) in the presence of the clan (kula). For superseding a wife, the husband was not required to obtain the permission of his clan. But for divorcing the wife, he needed its permission. Obviously, he had to justify in public his decision and give the superseded wife an opportunity to present her case. Not all in the clan could be expected to support the husband. It was not an issue only between the husband and his wife. (9-83) Divorce brought disrepute to the clan.
Manusmrti has undergone amendments, deletions and additions from time to time. It was referred to by the leaders and counsellors of clans for regulating the conduct of their members. These clans had power to penalize their errant members. A wife who resented supersession and walked out was brought back and warned. Some delinquents among these free women took to drinking in public and exhibited their revolt against the decision of the clan to permit them to be divorced. The clan could fine them six krshnalas. [The value of the gold coins depended on their weight in small black and red berries, krshnalas. The later currency, karshapana, might have been weighed against these berries.] (9-84)
It may be noted here that it was the clan that penalized the recalcitrant woman and not the executives or the officers of the judiciary nominated by the king on behalf of the state. It was a domestic dispute between the husband and his wife and had no direct impact on the political economy that could warrant intervention by the state. The clan however was not necessarily or invariably indulgent to the errant husband. The clan rarely referred the issue to any ecclesiastical authority for its opinion whether the action of the virago amounted to a sin.
It was an issue affecting the prestige of the clan and a challenge to its authority to regulate the conduct of its individual members. But the clan had to be cautious, as often the protesting wife had been a member of another clan. Inter-clan marriages were the norm and intra-clan marriages were aberrations and were avoided as they led to undesirable inbreeding. Inter-clan disputes would erupt if the wives were treated badly or if their rights were trampled. Wives were not helpless women.
Hence, to ensure that the wives were obedient they were drawn from families who were of a socio-economic status lower than that of the husband. Such anuloma marriages were permissible while pratiloma marriages, marrying girls from social strata higher than that of the husbands, were not preferred and were even prohibited. As the society was reorganized on the basis of four classes, the then existing clans and communities were incorporated in the different varnas or classes on the basis of the vocations that they were associated with. A varna became a confederation of clans and communities that had enjoyed almost equal status till then. Inter-clan marriages had to be intra-varna marriages to ensure equality of status for the husband and the wife.
Savarna marriages protected the wives and helped the families flourish on the basis of stability of marriages. Both anuloma and pratiloma marriages involving two different classes, varnas, were discouraged as they led to the offspring of such marriages being rejected by both varnas. These offspring were assigned to mixed classes, samkaravarnas, and suffered odium and social distancing and adverse social discrimination. Within the nuclear family too there was strain on account of this aberration.
When the varna scheme was introduced, those who had the benefit of formal education were assigned to the Brahmana varna and those who were in the politico-military structure to the Kshatriya varna. The latter too had formal training in the required martial arts and statecraft. The rest of the commonalty was divided into two classes. Those who had property were assigned to the Vaisya varna and others to the Shudra varna. The first three classes were ordained as twice-born (dvijas) and the members of the last varna were poor and uneducated.
Savarna marriages were the norm while anuloma marriages were permitted and pratiloma marriages were discouraged. Monogamy was the norm while polygamy was permitted and polyandry was prohibited. Yet pratiloma marriages did take place and polyandry had not been eradicated from everywhere. Shudras had to marry among themselves, as there was no class lower than theirs. Any attempt by a Shudra worker to marry a girl from a higher class was severely punished. But members of the higher classes could and often did marry girls from the working class. These girls were not treated on par with the wives from higher classes and were treated as but servants. Their offspring were not given any share in the family property.
Most of these girls from the class of workers had to serve under their Vaisya employers as Dasis, selling their bodies as well as physical labour to earn their subsistence. They were not mistresses having a hold on their employers who had fallen to their charm. Instances of Brahman intellectuals and Kshatriya officials having similar relations with these girls could not however been many for these intellectuals and officials had less chances of coming in contact with them and were more status-conscious.
The issue of polygamy involving only the classes other than the workers had to be tackled tactfully for it had yet to be determined which class was superior to the other two. Brahmans were weak both economically and politically and the other two classes, Kshatriyas and Vaisyas sought Brahman girls, as they were intelligent and docile. But this would amount to pratiloma marriage as the Brahmans were held to be more respectable than Kshatriyas and Vaisyas. Yet Brahman girls got married to Kshatriyas or Vaisyas in violation of this prohibition.
This led to the activating of the defence mechanism by which savarna marriages alone were treated as valid marriages. The editors of Manusmrti would however not abide by the implications of this claim. They demanded that in case of polygamy, the seniority among the wives should be determined on the basis of the order of the varnas. This would apply with respect to honour and claim to worship (puja) and to cohabitation also. (9-85)
Polygamy could not but upset the peace of the home. It may be stated here that while the Brahmans and the Kshatriyas were both accepted to be superior to the Vaisyas who were mostly landlords and owners of cattle, there was uncertainty about who between the Brahmans and the Kshatriyas were superior to the other. The above verse does not dwell on this aspect. It reflects the later normative practice that placed the Brahmans in the highest position and the Kshatriyas next to them and the Shudras at the lowest level. However, the reality could not be wished away and the merit in the argument that savarna marriages alone should be declared as valid marriages had to be conceded. This verse may be a later interpolation effected during the centuries while rediting the Smrtis.
Only a wife who belonged to the same community (jati) as that of the husband was permitted to perform socio-religious (dharma) rites with him and attend (susrusha) to his physical (and hence sexual) needs. The other wives were prohibited from attending to these (9-86). Obviously they were not prohibited from managing the economic affairs of the family. This stand must have been taken to avoid inter-community marriages even within the same varna or social class. A varna was a confederation of clans and communities following similar vocations. A jati or community was a federation of clans, kulas, following the same vocation.
While, intra-clan marriages were discouraged, intra-community marriages were prescribed. However intra-varna marriages could be inter-community marriages. The latter were not preferred as each community had its own economic code. It is obvious that many commentators have failed to note these subtle distinctions and have interpreted that only savarna marriages were lawful marriages. A husband who directed a woman of another community (jati) to perform the sacred rites along with him and attend on him would be subjected to censure. If he was a Brahman, he would be declared a Chandala and cast out of the society, it was warned. (9-87) This verse, which uses the term, jati, as an alternative to varna, must have been added later. .
MARRIAGE OF GIRLS
The parents were advised to give away their daughter as a virgin in accordance with the rule (vidhi) even if she had not reached the prescribed age, if the groom was highly handsome and equal to her in appearance (9-88). But it may be presumed that it was intra-varna and intra-community marriage and hence it was not expected that it would get wrecked for want of common orientations. If the father is unable to find such a groom for his virgin daughter he may not give her in marriage at all even if she had attained the age of puberty, but allow her to remain in his house till her death. This is better than giving her away to a man destitute of good qualities (9-89).
The presumption that failure to give away a daughter as a virgin was deemed to be an offence or sin is unwarranted. Obviously this was intended to ensure that neither complained against the other though it was an arranged marriage and the girl had not attained the age of consent. This rule is silent on the socioeconomic statuses of the two. Giving the daughter in marriage before puberty was permitted only if it was an alliance compatible in every way. No father had the right to chase his daughter away because she remained an aged spinster. The girl might be given away in marriage only after she had attained puberty. This was the norm. She could be given away in marriage only within three years after puberty. After that prescribed period, the father could not give the girl away.She had to give herself away.
Kanyadanam of a girl above the age of fifteen is irregular. Kanyadanam (gifting a virgin) implied that the girl had not yet attained the age of consent. The raising of this age of consent is obviously irregular and a violation of the rights of the girls though it might have been intended to protect the interests and welfare of the girls. After waiting in vain for three years (after puberty) for her father to select a suitable groom and give her away to him, the unmarried girl (kumari) might proceed to select a husband equal to her in appearance. (9-90) The editors of Manusmrti were convinced that such marriages were based on compatibility in physical appearance rather than compatibility in status, talents and orientations.
If a girl who has not been given away proceeds to select (and join) her husband, she does not incur any guilt. Her husband too is not guilty. (9-91) It is however implicit that this rule was applicable only when an unmarried girl selected her husband by herself and not when a man took the initiative to get married to such an unmarried virgin (kumari). The latter action was not considered to be above suspicion though she might have attained the age of consent. To ensure that the unmarried girl had not been enticed by the prospective groom to snatch her ornaments, it was declared that a virgin (kanya) who chose her own groom (svayamvara) should not take away with her the ornaments given to her by her father or mother or brother. If she did take them she would be declared a thief. (9-92) Some have interpreted that the groom would be declared to be a thief. It was only in a marriage of the dharma type where the girl was given away by a father or guardian to a groom chosen by him that she was endowed ornaments and money. These were given to the bride by her parents and not to the groom or to his parents for accepting her as bride.
In the Gandharva marriage where the girl who had attained the age of consent chose her husband or married a man recommended by her brother who was her guardian, no such endowment was made. It was based purely on mutual love without reference to compatibility in status. Sumptuous endowment was a sign of status. In the Paisacha marriage as the girl had not yet attained the age of consent, the husband would be accused of having enticed her with an eye on her ornaments. Rakshasa marriage involved abduction of the helpless girl.
Asura marriage was purchase of the girl. It was approved if the girl had not yet attained puberty.But bride money need not be paid, it was argued, if the groom took away a girl who had attained the age of puberty. The groom or his father became the owner (svami) of the girl when he paid bride-money to the father of the virgin who then gave her away. Of course the father could not sell his daughter after she attained the age of consent. If he intervened and demanded the bride-money, he would be guilty of attempt at preventing her from conceiving a child. The social legislators banned Asura marriage while Gandharva marriage was thrown open to all. In fact of the eight types of marriages, Gandharva, voluntary union, was the only type open to men and women of all classes. (93) Of course, the girl could demand bride-money to sell herself. It was only during childhood, a girl was to live under the supervision of her father. Later, she had to live under the husband selected by her guardian or by herself. In the latter case it might be based on mutual love or on the girl receiving bride-money from her husband in return for selling herself to him with the assurance that he would protect her life and interests.
A girl who had attained the age of twelve, that is, the age of puberty, was to be given as a virgin in marriage to a groom who was (not more than) thirty years of age. It is implied that she was not to be given in marriage to a person who was past youth or was too young. The difference in age in some cases was indeed too much and could not have been appreciated by the girls so given away. The editors must have kept in view the ability of the groom to stand on his own legs and protect his young wife. But a girl was not to be given away in marriage before she attained the age of eight or the groom had attained the age of twenty-four. This proviso permitting child marriage must have been intended to meet the needs of the groom who could perform his socio-religious duties (dharma) only in the company of his wife.
A twice-born (dvija), member of one of the three higher classes had to be a student (a Brahmachari) till the age of twenty-four and might not marry until he reached the age of thirty. This long period of education and vocational training had to be correlated to the preference for giving the girl away as a virgin and before she attained the age of consent. Child marriage was obnoxious and an undesirable aberration, the editors of Manusmrti knew but they could not overrule the above rules and practices. Some marriages took place when the bride was not even eight years of age. These child marriages did have an impeccable purpose, which was later lost sight of.
Of course, a student, Brahmachari, could cut short his period of training and marry a girl who was more than fifteen years of age. It would be Gandharva or Asura marriage and not a dharma marriage (Brahma or Daiva or Arsha or Prajapatya). (9-94) The explanation given by Jha, What the injunction means that the maiden married should be so much younger than men, is not convincing. Inadequate correlation among purposes led to child marriages. This vast difference in age must have been permitted only in the case of Brahma and Arsha marriages where the sole or main purpose was to meet the needs of the groom who was undertaking the life of a householder after a prolonged period of formal education at the residence of his teacher and who was expected to succeed that teacher (Brahman) or sage (Rshi) by marrying his daughter and freeing him of his cares.
It is not to be construed that only child marriages were recognized as religious marriages and that the girls should be given away in marriage before they attained puberty. The Brahman teacher like the Vedic sage was expected to treat the girl in his charge as a trust that had to be parted away with unsoiled for the socio-religious (dharma) purposes behind marriage. The rest of the society viewed the girl as an economic asset (artha) that might be sold or a liability that could be got rid off or an object of pleasure (kama). Still others got married, as they desired to become mothers or needed sons to protect them in old age. Some were given away in marriage, as the parents could not guard them too long.
There were occasions when the husband had to accept as his wife a girl given to him by the noble (deva), a member of the ruling aristocracy. He could not but accept this gift. He had not personally sought her. [The term deva is not to be interpreted as god. It is wrong to interpret that the husband was asked to treat the marriage with a girl not selected by him as a divine dispensation and refrain from harassing her.] The nobles (devas) arranged for the marriage of virgin widows who led a pious life as sadhvis, nuns. They selected the grooms who were mostly their dependents. These grooms were required to support these girls as their wives and comply with the directions and expectations of these nobles, the benevolent guardians of these unfortunate widows who were required to refrain from sex.
These grooms selected under the Daiva marriage were required to honour the vow of these widows to remain pure and abstain from sex though remarried (9-95). It needs to be remarked that both medieval and modern commentators have lost sight of the role of these nobles and sages in the social polity of the Vedic and early post-Vedic periods. The postulates dealt with by them while annotating this verse are off the mark and obscurantist. The translation by Jha of this verse as: The husband obtains his wife as a present from the gods and not by his own wish; hence he should always support his faithful wife, thereby doing what is agreeable to the gods, is unacceptable.
Daiva marriage had a note of suspicion about its intent and reality. Not all aristocrats conducted themselves as honourable guardians of the women serving them as dasis. Was the woman given away in marriage to his subordinate or dependent pure and had not surrendered to the advances of her guardian? The husband could never know the truth as she was dressed as a nun and he was barred from having sex with her. During the later epochs of decadence when these aristocrats hid themselves behind the sanctity of the idols installed in temples, these women were in fact prostitutes who served the former though they were married to the pliable dependents. The temples were used to sanctify prostitution. Daiva marriage was originally a social welfare measure that guaranteed protection to the young widows who had become nuns.
Among the commonalty, the main purpose was to procreate children by the duly married woman (stri). This rule is not applicable to the nari and the nara who were not brought under the ambit of class, varna, and who were no longer associated with the clan or community of the commoners (manushyas).
Men (manavas) were the procreators and the children were formed in the wombs of these wives. Manavas who respected the provisions of the Manava Dharmasastra had accepted the varna classification but were not adherents of the codes of any particular clan or community or region and hence there were doubts about the calibre of the clans and communities of their descent. But they were reliable and personally pure. [According to this verse, the offspring of a manava who was a citizen of the world rather than of the particular state by a respectable woman of that state would enjoy all the rights its mother was eligible for and would not be thrown out even if its progenitor left her.]
Burnell was imprecise when he translated this verse as: Women are created (in order) to beget posterity; therefore common religious duties (for the man) with his wife are declared in revelation (srutis). Prajapatya marriage was an old practice prevalent among the commonalty. Manava Dharmasastra did not introduce it newly. Still not all the ten members of the Board of Ten Prajapatis who drafted this code accepted it. Only Brahma marriage was favoured by all of them. Dharmasastra however made it permissible only to its strict adherents, the manavas. Neither the manushyas who adhered to their respectivekuladharmas or the free men, naras, who accepted thesrenidharmas and desadharmas but not kuladharmas or varnadhrmas nor the purushas who headed nuclear families and functioned as heads of local bodies could follow this type of marriage.
Prajapatya marriage permitted the women (stris) of the respectable clans to marry these manavas who had accepted one or the other of the sages as the founder of their gotra and procreate sons. The grooms were often alien to the local community but the chiefs of the people,prajapatis, who were descendants of the great sages, maharshis, vouched for their noble character. This process of begetting offspring (praja) to continue the newly selected family (gotra) tradition was behind the Prajapatya marriage. The Vedas (Srutis) had declared the wife as a partner in socio-religious (dharma) activities, these sages who edited the Vedas said. In other words, marriages, which had procreation of offspring and continuation of the lineage as their main objective, were treated as lawful.
Marriage was not meant only to get ones sex urge (kama) met. It was also not for the purpose of begetting an heir to ones property or to acquire wealth (artha). The comment by Jha, Since alone by himself he could not be entitled to the performance of any rites, he shall not abandon his wife, even though she be hostile, is unwarranted. It is unsound to presume that a bachelor or a widower or a man separated from his wife was not entitled to perform any religious rites. Such denial was a later aberration intended to acquire unlawfully their property for the state. (9-96)
Prajapatya marriages were applicable to women (stris) and men (manavas) of respectable families who were conscious of their duty to procreate children within the fold of marriage and continue the lineage. This approach percolated to the commonalty. As a result, a marriage that did not result in birth of children became liable to be dissolved without any odium. Divorce on this ground could be claimed only in the Prajapatya type and not in other types of marriages. Among the naras and naris, free men and free women who agreed to the rules of cohabitation they might break off if and whenever they found such cohabitation incompatible. These naras and naris were from lower ranks of Gandharvas and Apsarases who had however high cultural motivations and interests but their interests and emotions or sentiments were but fleeting ones. Prajapatya marriage was applicable only to women who were above the age of consent and had independent means of livelihood but were aware of and respectful to their obligations to their families and clans and to the gotra orientations that they had consented to honour when they got married.
In the asura type of marriage, the father of the young girl demanded bride-money from the groom for parting with her services and the girl herself demanded it when she was an adult yielding her body and services to him. At times a noble (deva) who consented to marry the virgin (kanya) who had not yet reached the age of consent paid bride-money (kanya-sulka) to her father. It was to compensate for the losses the father was likely to suffer by parting with a girl who could have helped him in his domestic chores. This was not despicable. In this type ofDaiva marriage (resorted to by some families belonging to the recognized aristocracy) the members of her marital family were not free to return her to her parental home if the groom who belonged to the aristocratic family died before the consummation of marriage. She might be given in marriage to the younger brother of the husband if the virgin-widow consented. (9-97)
Obviously, the father of that virgin-widow would be giving her away fully decorated and befitting the status of the groom. For such remarriage, the girls consent was necessary though she might not have reached the age of consent. She was yet a kanya and not a kumari. Yet she had the social status of a lady (stri) and could not be married off against her will. [Manusmrti has suffered condemnation because it has not been interpreted correctly and the appropriate social factors have been lost sight of. It is silly to raise the issue of what would happen to the nuptial-fee if the virgin-widow refused to return it.] It was a Daiva marriage, a respectable one confined mainly to the nobility where honour did count and counted more than wealth. The daiva marriage was one that was willed by the noble (deva) who gave away the virgin.
Many of the sages who drafted the Manava Dharmasastra were convinced that acceptance of bride-money (sulka) amounted to sale of the girl. It should not be encouraged whether the marriage was of the Asura type (blatant sale and purchase of girls) or Arsha type (gift of a virgin, kanyadanam in return for gift of a cow, godanam) or Daiva type (social commitment and guarantee of good intentions). As the practices of the elite tended to percolate to the masses, it was necessary to keep the latter away from this unhealthy trend.
Even a Shudra (a poor worker) should not take nuptial fee (sulka) when he is giving away his daughter; by accepting a fee, what he does is disguised bartering.(9-98) Sale of brides was obnoxious and prohibited. But it was not easy to curb the practice among the elite to offer bride-money to the girl or her parents at the time of marriage as a mark of respect. Unless the elite mended their ways, the practice of sale of brides could not be eradicated. It was worse than demanding heavy dowry for accepting the girl in marriage and straining the resources of her parents.
Some argued that payment of bride-money was to bind the parents of the girl to give their daughter in marriage to that groom as promised and not to another. Pious men, both in the past and at present, have never committed that act (of deception), the editors say. The pious men (sadhava) were obviously widowers who had vowed not to remarry and were eager to give away their young daughters in marriage to suitable grooms before retiring from social life and economic activities. They were not after wealth and hence their words should be trusted, the editors said. Not all in the society had become corrupt and unreliable. There were still some pious men left. Their words should be respected. (9-99)
The editors refused to accept that acceptance of bride-money was an ancient practice. They had not heard of it. It was a covert sale of a daughter for a price styled nuptial-fee. (9-100) It was a mark of social decadence and it had set in only recently then. It had to be removed from the statutes, later editors felt. They rejected the argument that the first Manu, Svayambhuva, had permitted all types of marriages except the Paisaca, enticement of immature girls. They disallowed Asura marriage also.
The editors of Manusmrti expected an ideal marriage to last till the death of the partners and to be free from betrayal of each other. Neither the husband nor the wife was free to resort to extra-marital relations. This should be known as the highest duty of the lady (stri) and her spouse in the dharma type of marriage. It was not based on fulfillment of sex urges (kama) or expectation of economic gains (artha). It needs to be kept in mind that only Brahma, Daiva, Arsha and Prajapatya marriages were treated as Dharma marriages. Gandharva and Paisaca marriages were impelled by lust (kama) and Asura and Rakshasa marriages by economic motives (artha). The editors implied that the Dharma marriages could not be dissolved. Of course breach of fidelity was adequate to wreck such a marriage. Neither the husband nor the wife had the right to divorce the other or to marry another as long as the other lived. But the widow could remarry and so too the widower. (9-101) The husband and the wife were exhorted to so conduct themselves that they did not get separated and remained loyal to each other. (9-102)
The allegation that Manusmrti suppressed the rights of the women and neglected their interests even while it tolerated infidelity of men, is unwarranted. Women were helpless victims when the marriages were based on pursuit of lust or wealth. These types of marriages were not declared as Dharma marriages. Manusmrti did not encourage them. (Vide also my earlier work, Foundations of Hindu Economic State on Svadharma Sthapanam, Institution of the Duties of the Individual, according to Kautilya)
The verses 37 and 38 of Chapter 3 of Manusmrti indicate that all the ten members of the Board of Prajapatis, who drafted this code, approved Brahma marriage while only seven permitted Daiva marriage and six Prajapatya type. Arsha type gained the support of only three members. Bhrgu recommended kanyadan only for Brahmans. For other sections of the population, Gandharva marriage was the most preferred. It was open for Brahmans too to follow this type. Very few marriages were arranged marriages.