KAUTILYA ON LAWS OF MARRIAGE
Bk.3 of the Kautilyan Arthasastra describes civil law as instituted by it. Dharmasastras treat marriage as a socio-cultural institution. Persons who identify dharma with religion hold marriage as a holy or religious affair and do not tolerate state interference in it. But Arthasastra treats it as a socio-economic institution and uses law to regulate it. According to Kautilya, the basic cause of all disputes may be traced to the stage when a marriage is contracted.dharma would not have approved this stand, which justified state interference in the affairs of the family. Kautilya commences the section on vyavahara with marriage while Manusmrti begins it with debt and others with deposit or house. Can there be a common civil code to regulate marriages and thereby reduce social tensions? Of course, champions of
An individual becomes entitled to enter into economic transactions as he gets married after completing his education (after brahmacharya stage of life). Only married householders (grhasthas) were eligible to own property and hold positions in administration and trade and exercise economic and political rights.
Vanaprasthas, the senior citizens who had retired, continued to enjoy these rights, though with some restrictions, as they had only shifted their residences from the busy towns and villages to the calm forest. They could not receive remuneration for their services but they too had to pay one sixth of their meagre earnings (as self-employed persons) as tax. They relied mainly on their savings from the past earnings. Those persons who had opted for total renunciation, sanyasa, had to leave behind these savings too.
Economic transactions with third parties bound both husband and wife even if only one of them had entered into them. Neither the students who remained unmarried nor the monks who had renounced everything including their wives enjoyed any economic or political right. [Kautilya could not and did not depart from this normative practice.] To enjoy the various social, economic and political rights, accruing from thevyavahara rights and duties, one had to be in the married state. Divorcees, widows and widowers, bachelors and spinsters were denied these rights and were looked down upon.
Enlightened economic interests hence discouraged divorce and encouraged remarriage. But vested interests of a vicious type that came to the fore during the medieval times discouraged encouraged divorce and discouraged remarriage especially of women. Kautilya lifted all sanctions against divorce and remarriage.
But later smrtis rescinded this, arguing that it led to permissiveness. Kautilya deprecated licentiousness but was pragmatic. He did not insist on monogamy but made bigamy and polygamy more difficult. He deplored entering into incompatible marriages.
Kanyadan and Brahma marriage
Kautilyan civil law recognized all the eight types of marriage that were then (that is, during the last stage of the long Vedic era and the early post-Vedic era) in vogue (3-2-2 to9). [Kautilya belonged to the early post-VedicArthasastra was discovered several centuries later and edited by Vishnugupta during the times of Nandas and Mauryas.]
Kautilya's order of preference among them (Brahma, Prajapatya, Arsha, Daiva, Gandharva, Asura, Rakshasa and Paisacha) differed from that of Manusmrti (3-21) (Brahma, Daiva, Arsha, Prajapatya, Asura, Gandharva, Rakshasa and Paisacha). The particular features of each of these eight types of marriage are brought out in this essay. Unlike the Dharmasastras, the Arthasastra does not recommend which type a particular class (varna) should follow. Both gave first preference to the Brahmatype which meant giving away in marriage a virgin (kanya). times c3000 BC and the text of his
The pre-Svayambhuva tradition of the Sarasvati basin (Brahmavarta) had prescribed the Brahma type involving such gifting, only for the Brahmans on the ground that they alone were entitled to accept gifts. Kautilyan civil law ignored this reservation and threw it open to all. However it was not obligatory for a virgin to be married only by this type. One who is not a virgin or a virgin who had attained the age of consent (three years after puberty) could not be given away in marriage by this type. The entire population was required to honour the rule that no child should be given away or taken away as it was incapable of exercising its consent.
Only the Brahmans, scholars and priests who had no intent to exploit the girls, were allowed to give away or accept children as gifts in marriage. (Many of these scholars had no homes of their own and were constantly on the move educating the people and performing sacrifices on their behalf as Vipras. They left their child wives behind to be looked after by their parents.)
During the pre-Svayambhuva epoch when the four-varna scheme had not yet been recognized, the first six types were open to the Brahmans and the last four to the Kshatriyas. Others could follow Asurasulka (payment of bride-money to the girl or to her parents) or Gandharva (voluntary union) or Paisacha (enticement) type. Brahmans were not allowed to abduct or entice a girl. Kshatriyas alone were permitted Rakshasa type (conquest), a form without substance, to exhibit manliness. Only the Gandharva voluntary union was open to all.
Bhrgu and his colleagues whom Manu Svayambhuva appointed to draft the Manava Dharmasastra (the socio-cultural code) banned both Asura and Paisachamarriages and introduced a revolutionary change. No girl was to be sold or purchase and no girl should be enticed into sex they declared. If by kanyadan, child marriage or marriage before attaining the age of consent was meant, it was open only to Brahmans.
The age of consent was three years after puberty (which was 12 for girls and 15 for boys). There could be no consummation of marriage before attaining the age of consent though the formal alliance had been struck earlier. This social legislation checked the misuse of the provision permitting Brahma marriage, though for Brahmans only. The Arthasastra does not abide by this restriction. Social and economic codes have not permitted other classes to practise child marriage or resort to it for any reason. Kanyadana of the child marriage type was not obligatory even for Brahmans.
The eight types of marriages in Arthasastra were based on traits, which the Dharmasastras had identified. None of them required payment of dowry to the groom for accepting the girl as bride and undertaking to protect her as his wife or to his parents. Neither the Dharmasastras nor the Arthasastra permitted or recommended payment of dowry or prescribed it. They ignored it and did not approve it. [Sociologists are expected to take into account this aspect of the tradition.]
However payment of bride-money (sulka) to the parents of the girl was in vogue even before Manusmrti came into force. This was treated as Asura type and despised as characteristic of the feudal (asura) culture, which had no respect for the feelings and wishes of women and treated them as but commodities or animals or bonded labourers.
Manusmrti banned it. Kautilya instead of imposing a pious ban on it contained this inhuman practice through the new provisions in vivaha dharma, law of marriage, legislated by Arthasastra and implemented by the state. Law should encourage good practices and discourage the bad ones. Social legislation was needed to contain the three evil types Asura, Rakshasa and Paisacha. TheBrahma type (kanyadan, gifting of a virgin) was free from the two evils, bride-money and dowry, though it was tainted by the evil of child marriage.
Arthasastra (lays down the rule that the first four types Brahma, Prajapatya, Arsha and Daiva) require authorization by the fathers of the brides and the grooms and that the other four (Gandharva, Asura, Rakshasa and Paisacha) authorization by both the fathers and the mothers (3-2-10). Only the first four were dharma types of marriage. The dharmasastras did not follow this classification. In the absence of this authorization, the marriage stood unrecognized by the state and the parties who had contracted the marriage were liable to be excluded from all economic, civic and civil rights. They could not set up homes.
It was not adequate that the consenting couple got married according to religious rites or at a shrine or at a public assembly or even in front of the civil judges, dharmasthas. Of course marriage without the consent of the girl was an offence. Marriage is more than a contract or a compact entered into by two persons in the presence of witnesses. Social equilibrium and tranquillity required that all the four parents concerned endorsed it as it laid the nucleus for a new family sprouting from two existing families. No other kinsman was authorized to endorse it as long as the parents were alive.
If they were dead and if the boy and the girl were adults, the chief of the people, prajapati could arrange the marriage. (Such marriage was called Prajapatya marriage.) Or they might get married on their own, that is, by Gandharva marriage. The dharmasthas, civil judges, had authority to approve the marriage or sanction it only if the parents were not alive. Why was authorization by mothers not insisted on in the first four types? Is it proper to describe the first four alone as of the pious (dharma) type?
The dharmasthas permitted only the Brahmans to follow the Brahma, Prajapatya, Daiva and Arsha types, as it was a very old practice. Kautilya amended these types also while throwing them open to all. Yet very few resorted to them. The Brahmans constituted a very small minority of the population and were economically weak. The above questions need a correct appreciation of the historical background, which most modern critics have failed to arrive at. Modern Hindu Law has hence been diverted from the basic issues involved. It has fallen victim to demagogues and detractors.
Gandharva type of marriage was the only type that was open to all classes since the earliest times. The new Kautilyan civil law stipulated that all the four parents should approve this voluntary union type of marriage before it could become legally valid. Otherwise the couple could not set up a home or pursue any occupation. Nor would they be able to get a share in the family property. Any one of the four parents could threaten to veto it.
If the couple did not want to wander penniless and homeless and as but paramours they had to first secure the approval of all the four.The new civil law of marriage stepped in to regulate the marriages in the interests of both the bride and the groom. Many Brahmans too would have got married by this type, which did not involve payment of dowry or bride-money. Kanyadan, though thrown open to all, was not as common as the Gandharva type of marriage was.
Before the Dharmasastras and Arthasastras were first drafted and before the varna scheme came into vogue, there were four social classes in the core society, the nobles (devas), the feudal lords (asuras), the blessed peoples (punya-jana or gandharvas and apsarases) and the commoners (manushyas). Most Brahmans and Kshatriyas emerged from the gandharva cadres while most Vaisyas and the Shudras emerged from the commonalty.
The gandharvas did not acknowledge the authority of the two rival sections of the ruling elite, devas and asuras. They were free intellectuals and warriors but had no homes of their own. They mingled freely with the frontier society also. Like the kimpurushas, residents of the forests (later described as vanaras or monkeys) they constituted a social universe (jagat) rather than a social world (loka) with definite social and cultural orientations. They were not attached to the soil or any one territory.
The Daiva marriage (endowment or dowry system), the Asura marriage (sulka or bridal-money system), the Gandharva marriage (voluntary union of adults) and the Prajapatya marriage (sahadharma system, joint responsibility, not mere cohabitation with intent to produce offspring as wrongly interpreted) characterized the socio-cultural life of the above four classes (devas, asuras, gandharvas and manushyas) of the pre-varna Vedicsociety. The other four types (Brahma, Arsha, Rakshasa, and Paisacha) were not normative types then.
In the Prajapatya type of marriage, the husband and the wife performed all duties as parents jointly. Brahma type (kanyadan) and Arsha or Rshi (sage) type (kanyadan in return for gift of a cow and a calf, godan) were initiated byBrahman intellectuals, Brahmarshis, who kept away from all material pursuits.
The rakshas (guards) who had strayed from their Kshatriya duties were called Rakshasas.They kidnapped girls for ornaments and for sex, while antisocial persons who enticed girls or hypnotized them were kept out of the villages as Paisachas. They moved about as shadows at night. Even these two types of deviants could be pardoned and acknowledged by the parents as grooms. The Brahma and Arsha types called for a spirit of sacrifice. Any discussion of these types will be fruitful only if the above aspect of the early Vedic culture is understood correctly. It does have considerable significance for the modern society.
Role of the Father
Ancient Indian society was essentially patriarchal like its contemporaries all over the world. [The tendency to condemn it as authoritarian is not to be welcomed.] The Gandharvas were however not patriarchal. The commoners (manushyas) stressed the supremacy of the seed but some claimed that the soil was superior. It was an issue pertaining to genetics and covered all life and the issue of fertility.
Bhrgu and his colleagues who drafted the Manusmrti advocated the principle of seed and soil equivalence. While treating the contributions of the father and the mother in the making of the personality of the growing child as equally important, this principle held that of the father (seed) to be marginally more significant. [Sociologists to note]
In the first four types of marriage, Brahma, Prajapatya, Arsha and Daiva, the wife had to follow the husband and could not disobey him. The wife had to accept whatever the husband did as being in the best interests of their children. She could not overrule his decision to give away their daughter to the groom of his choice without the explicit consent of either his wife or their daughter. He was not selling the girl nor was he getting rid of a burden. Nor was the suitability of the groom questioned.
He gave the daughter away fully adorned and took care of her future.There was no economic transaction (artha) in these four types nor were they based on lust (kama). [Stereotypes on which modern students are fed need to be discarded.] The father or godfather bestowed stridana (womans property) in cash and kind (as ornaments) on the daughter and took care of her future economic security. She was not being thrown to the wolves. Hence the mother had no reason to complain. The father was discharging her duties also.
Of course, unlike the Gandharva marriage, which was voluntary union, the Brahma marriage was arranged marriage. The father of the bride and the father of the groom arranged it. There was nothing holy or divine or destiny about it and there was no need to restrict it to the Brahmans. But it was not the standard type nor was it the most widespread. Later, as it spread and percolated to the masses it began to lose its original sheen. [Hindsight might question whether it was wise to throw it open to all the ranks of the society; for many fathers tend to be despotic and greedy.]
Ornaments and cash (not more than 2000 panas) were given to the bride by her father as'stridana' (and not to the groom as dowry). Neither the parents of the girl nor those of the boy received any money or article or property from the other. Brahma type did not involve economic transaction. Hence it was dharma type. [It is unsound to call it as religious marriage.]
Modern Indian sociologists in their pre-occupations with the theme caste versus class have failed to probe into the origins of the Hindu social system. They have followed Anglo-American concepts and postulates or ideological positions taken by the Marxists or Anglo-Saxon racist positions while describing this system. In my works, I have drawn attention to the concept of three social worlds (lokas), patriciate (devas), commoners (manushyas) and the frontier society of the forests and mountains (antariksham) of the Vedic era. I have discussed its bearings on the four varnas system that came into force by the end of the long Vedic era.
I have drawn attention to the concept of eight sectors of the larger society of that era, liberal patriciate (devas), feudal warlords (asuras), sages (rshis), elders (pitaras), agro-pastoral commonalty (manushyas), the blessed people who had no definite settlements (punya-jana, gandharvas and apsarases), the other people (itara-jana, the plutocrats, yakshas and their guards, rakshas, and followers) and the technocrats and industrial proletariat (nagas and sarpas). This analysis is based on the one given by Kashyapa, a leading ideologue of the later Vedic era.
The eight types of marriages, Daiva, Asura, Arsha, Brahma, Prajapatya, Gandharva, Rakshasa and Paisacha, may be correlated to these eight sectors. The predominantly agro-pastoral core society had four approved sectors, patriciate (devas), sages (rshis), elders (pitaras) and commoners (manushyas). The other four sectors were not favourable to the orientations upheld by these four sectors.
Among the commoners (manushyas), Prajapatya marriage was in vogue. Only if the chief of the people, prajapati, recognized a commoner and his wife as properly married and held them as entitled to procreate issues and hence eligible to take part in all activities as associates (sahadharma), the members of the other three cadres, devas, rshis and pitaras, nobles, sages and elders would attend as witnesses the rituals including sacrifices, which the couple performed. It was companion-type marriage with equal rights and duties to the husband and wife as in the ardha-sitika pattern of agriculture. Approval by the local community was insisted on. Only in the Brahma type the husband had greater voice than the wife though it was not authoritarian. Among the commoners the husband and the wife had equal rights and equal responsibilities.
Kautilya made it obligatory for this type also to be approved by the two fathers. Only six of the ten Prajapatiswho drafted the Manava Dharmasastra, approved thePrajapatya marriage while seven approved the Daiva type marriage. While only three Prajapatis approved Arshatype, all the ten approved Brahma type, which did not involve economic transactions (Manusmrti 3-37,38). [The ten Prajapatis belonged to different sectors of the larger society and represented different schools of thought.] The Arthasastra ranks the Prajapatya type next only to the Brahma type.
Unlike the Brahma type, the Prajapatya type did not take precautions to protect the interests of the bride. It did not provide for brides wealth (stridana). It emphasized only continuation of the lineage through procreation and the need for parenthood and progeny. Later, it was criticized as being permissive, with husbands losing control over wives.
The Arsha type was a social welfare measure and could have been common. The girls brought up by the sages (rshis) were offered as brides in kanyadan to deserving and willing disciples, mostly Brahman youths. In return, the groom had to gift a cow and a calf in godan. Bhrgu and others did not endorse this practice as it smacked of sale and purchase of girls. It resembled the prohibited asura type of marriage. Only a bold disciple would have married a victim of social ostracism.
As the sage, her godfather vouchsafed the virginity of the bride and as she was trained in domestic rituals, there should have been no objection to this marriage by gift. The sage alone knew who her parents were. Kautilya insisted that even in this case, the father of the girl and the father of the groom should give their explicit consent to the marriage. Most boys would have hesitated to marry girls whose mothers had not been publicly acknowledged by the fathers. These girls had been brought up in guarded seclusion.
This too was a social welfare measure. The maids in the service of the nobles (devas) in their households were given away in marriage to domestic priests (rtvijas). (Rtvijas were officials of the state empowered to ensure that every official adhered to his duties.) The latter were also offered rich dowry to protect their attendants-cum-wives (dasis).
These maids were not prostitutes or slaves but the suspicion could not be ruled out. They would have been daughters of the female employees attending on the ladies and might have been born to their employers, liberal aristocrats or their guests.Though the object was laudable, as this type of marriage involved payment of dowry as allurement or compensation, Arthasastra ranked it low. Manusmrti looked down on the priests who accepted such girls who might not have been virgins. Arthasastra insists that here too the fathers permission should be got.
The Prajapatya type treated the wife as an equal partner and companion of the husband and as an agent for procreation and continuance of the lineage. The Arsha type recognized the compelling need of the girl to become a mother.and the Daiva type made her the husbands personal attendant (dasi).They fell short of the Brahma type which expected her to play all the three roles, companion, mother and attendant.
While the Prajapatya type gave her the status of the second head of her nuclear family even as she got married (mostly soon after attaining the age of consent), the Brahma type gave her this status only after she became the mother of two children. In the Arsha and Daiva types, the wife was totally dependent on her husband. All these four types were dharma types.The parents and the guardians of the girls arranged the marriage of the girls before or soon after they had attained the age of consent. They had no ulterior motives.
Asura Type (The feudal type)
Manava Dharmasastra was first drafted even while Manu Vaivasvata, Sakra Indra, Prajapati Vivasvan and Vishnu, an overlord, Viraj, were battling against the feudal (Asura) culture on behalf of the commoners (manushyas) and the nobles (devas), the two main strata of the agro-pastoral core society of the Vedic times.
While the daiva type of marriage involved payment of dowry to the groom to enable him to maintain his wife and directed her to serve him, the asura type involved payment of bride-money (sulka) to her parents to recompense them for the financial loss they had to incur. They were forgoing her services to their family when they parted with her. The economic theorem, which treats the services of a woman to her family as assessable in monetary terms and overlooks the emotional contents of these services as a wife or mother or sister or daughter, is of Asura type.
Indian society rejected it on Manusmrti coming into force but got revived when this code was not enforced rigorously and its spirit was lost sight of. The Daiva type viewed marriage as transfer of a liability from the girls father or godfather to the groom and his father. The Asura type viewed it as an acquisition by the groom and his parents of the valuable services of the girl from her parents. It was transfer of an asset. No other type of marriage was so odious.
Hence the Prajapatis who drafted the Dharmasastra unanimously barred the Asura type even as they barred the Paisacha type (enticement of girls, especially children and adolescents). They treated the Daiva type as respectable and placed it next only to the Brahma type, which gave the maximum protection to the bride through the institution of stridhana in her favour. Of course the Brahma type permitted and promoted if not prescribed, child marriage. Kautilya ranked Asura type as being lower than the Gandharva type (voluntary union).
The Daiva type made the wives servants while the Asuratype made them slaves. The two were resorted to by members of the ruling classes, liberal nobles and feudal lords. (It is wrong to interpret the Daiva type as one ordained by Gods and hence as one not to be objected to by any of the parties to the marriage or by others in the society.) The Gandharva type made the wives companions in pleasure and the Prajapatya type made them associates of their husbands in discharge of duties to their children and in performance of rituals. The Brahma type made the husbands the new protectors of their wives having accepted this responsibility at the time of kanyadana.
Arsha, Rakshasa and Paisacha types were taken exception to and are not favoured by civilized societies though Arsha marriage was indeed a social welfare measure as it was marriage and rehabilitation of abandoned or orphaned girls. It may be noted that most modern sociologists of India in their eagerness to decry along with their western mentors the Hindu social system and criticize it for its cruelty to women have not taken into account the above features.
The civil law on marriages (vivaha dharma) as legislated byArthasastra intervened to protect the interests of the women. Bride-money (sulka) was made payable to both the parents of the girl or to the survivor of the two in the case of asura type marriages. If neither was alive it was paid to the girl herself (3-2-11,12). Though a major step, it was not adequate to curb the evil practice of sale of girls. The sulka paid to the parents of the girl was to be reinvested as to constitute the brides property, stridhana, as insurance for her future, an amount on which she could fall back on if left in lurch by her husband. He was not entitled to get back what he had once paid to marry her.
Marriage thus becomes a socio-economic institution liable to be governed by civil law. It does not remain only a socio-cultural institution governed by dharmasastra or an exercise in joy to be handled by kamasastra.All types of marriages are governed by civil law. But it does not try to impose uniformity. None of these types can seek immunity from law. None is divine or god-willed. Laws of marriage that fail to take into account the need for protection of the brides cannot pass the test of rationality.
Age of Consent
Most marriages were ones arranged by the parents, especially, by the fathers. Virgins were given away in kanyadan to suitable grooms of the same community and of the same socio-economic status. Even if the girls were got married before puberty, they had to wait till the age of consent (fifteen for girls and eighteen for boys) for consummation. (After attaining the age of consent boys and girls could marry on their own.) In Brahma and Arsha marriages the girls had not yet attained the age of consent but the boys had. Very few marriages were of this type. Daiva marriage did not specify any condition, even of the girl being a virgin at the time of marriage. This type of marriage too was not common.
Prajapatya and Gandharva marriages could be only after both the partners attained the age of consent. Most of the marriages were of these two types. Asura, Rakshasa and Paisacha marriages did not respect any law and required special measures for regulation.
Composition of Stridhana (Woman's Property)
Hindu sociology has to be rescued from the demagogues who have no regard for reason and from ideologues who twist facts to justify their distorted notions and mischievous objectives. By insisting on authorization by parents, especially by the fathers, Kautilyan Arthasastra tried to protect the interests of the girls lest they should be kept as only concubines or treated as slaves by their husbands. All agreements are economic contracts. Marriage too is an economic contract.
Only economically sound and socially respected families could abide by the strict rules of Brahma marriages. [It is not sound to present these marriages as the only type that deserved to be called as holy and hence as ones that could not be dissolved.] The father of the bride was required to adorn her with ornaments (no limits prescribed). These belonged to her exclusively and were later declared to be inheritable only by her daughters. [Some smrtis enabled her sons also to get a share in them. Kautilya is silent on this issue. He was silent on most of the clauses of succession.]
All other endowments given to her by her father were optional. [As times of decadence set in, his right to make such endowments was challenged by his sons.] Cash endowed could not exceed 2000 panas (silver rupees equivalent to about 200 gold coins, varakas). This cannot be treated as dowry as her husband or his parents had no right to it. It would have yielded her an annuity of 300 panas at the non-commercial rate of interest at 15 per cent. The bride was sent to her husbands house with all honour and was accepted there with honour. Neither dowry was paid to the groom nor sulka accepted from him. [The stereotypes on which demagogues and ideologues thrive need to be discarded.]
The above cash of 2000 panas and ornaments constituted the corpus of her stridhana. Besides, all other receipts from her parents, brothers and sisters and other relatives given as gifts at the time of marriage or after that went to that pool. No portion of it could be appropriated by her husband or his parents or kinsmen or by the contributors belonging to her parental home. Similarly all gifts received by her from her husband, his parents, brothers and other relatives before and after her marriage went to that pool, stridhana.
Stridhana thus constituted became a permanent asset inheritable only by her daughters while what was gifted to or inherited by her husband became his property and was inheritable only by his sons or by his kinsmen, dayadas. [But Kautilya had different notions about the purpose of stridhana and who could inherit it.] Even if some immovable property had been given to the bride, it was treated as stridhana. Very few fathers and mothers would have been able to make such assignments. Law protected stridhana against misappropriation and misuse. No other type of marriage gave such protection to the women as the highly respected Brahma type did. There is no need to be apologetic about it or be distracted by the charge that it was arranged marriage and that the father arranged it without consulting his wife and daughter.
It was not meant for Brahmans only though only Brahmans (but not all of them) followed this type. Stridhana, brides property, could not be drawn upon by the groom or by his parents who managed the affairs of their larger family. The bride herself could draw from it only under exceptional circumstances (3-2-16). The judiciary had to follow the rules laid down in the Arthasastra. It functioned as a family court also. [There was no authentic text of the dharmasastra for its perusal.]
The husband, the wife and their minor children constituted the nuclear family (kutumba). It was part of the larger family headed by the husbands parents who oversaw the interests of their unmarried daughters (and widowed daughters) and their sons and their nuclear families. The basic family comprised the husband, his wife, their minor sons and daughters and the non-earning aged parents of that husband and head of the family. The economic family comprised besides these his unmarried sisters and widowed sisters whom he had to protect on behalf of his aged parents and his own widowed daughters.
[Sociologists may note these aspects of the Hindu family and not follow blindly the western approach to India or the concepts of Joint Family or Hindu Undivided Family as the tax systems have envisaged. These concepts lack necessary rationality and have not taken into account the various patterns of marriage and family prevalent in different parts of the country.]
Under the Brahma type, the new bride became the associate head of her nuclear family when her second son was born (mithunam) as 3-2-16 implies. [The notion that only the first son was known as dharmaputra, the son needed for and entitled to perform the obsequies and discharge his fathers liabilities (spiritual and material) was a considerably later development. It was not intended to deny the younger brothers a share in the fathers property.] It implies that after the birth of the second child (normally one son and one daughter), the mother became the associate head of the nuclear family. Very few marriages were of the Brahma type. Modern Hindu Jurisprudence has erred in presuming it to be the normative type.
Under the Prajapatya type of arranged marriage followed by most of the commoners and also under the Gandharva type of voluntary union, she got this status even as she got married. In these two types it was not obligatory for the new couple to function as a subordinate unit of the larger family. The couple had their separate residence if their marriage had been approved by all the four parents (in the case of Gandharva marriage) and by the fathers (in the case of Prajapatya marriage) and by the civil judge, dharmastha. Neither type involved economic (artha) transactions.
Gandharva marriage was inspired by kama (lust) and Prajapatya type by sense of duty (dharma). Both types were common.
Under the Daiva and Asura patterns which involved economic incentives and deals (dowry to the groom and bride-money to the parents of the girl respectively), the nuclear family did not get a separate status and identity until both the parents of the groom expired. (The wife had to function as their subordinate till then.) And after that, in the Asura pattern, as she had accepted bride-money, sulka, she had to obey her husband and master. In the Daiva pattern, as she had brought no stridhana, she continued to depend on her husband for her every need. In both these types she could not become the associate head of the family.
In the Asura type, she was almost a slave while in the Daiva type her status was close to that of an attendant who yielded to the sexual advances of her husband as well as his guests. [It is unfortunate that modern Hindu jurists have overlooked the Arthasastra and followed Mitakshara and Dayabhaga, and imposed these two patterns on the Hindu society, the Daiva pattern of dowry disguised as Brahma pattern and the Asura pattern of sulka. Manusmrti debarred the latter.]
In the Brahma pattern, which has later been treated as the only religious type of marriage, until the wife became the associate head of her nuclear family, her property, stridhana was kept in the custody of her husband or the husbands parents. [Stridhana was optional and insecure in other types of marriage.] The couple had to stand on their own legs after the birth of their second child and the custody of the stridhana was transferred to her and her husband. This was the effect of the new Kautilyan code. Thereafter, they could draw on it jointly, but for a brief period only.
Of course, the husband could draw on it under domestic emergency to ward off disease and distress or for performance of rituals (dharma) but had to replace it within three years (3-2-17). It is implied that he was not allowed to invest it in trade or property or use it for gambling and other vices or lend or gift it to others. It was the wifes property and had to remain so as a secure fund and liquid asset with a separate identity. [The husbands creditors or dayadas could not attach this property.]
But the wife could draw on it on her own (without consulting her husband or his parents) if the husband had gone abroad without arranging for the maintenance of his wife, their son and daughter-in-law (16). [The son and daughter-in-law had no claim to this property. Only her daughter would get it after her death.] Instead of being forced to depend on the young couple (who still depended on her) or to appeal to her parents-in-law (who were old and might not be earning) she could use her property, stridhana, to meet her needs. Thereby she could fulfill her obligations as the associate head of the family and now as its officiating head. The larger family no longer treated her and her husband and their children as one of its units. The protection accorded to them by it stood withdrawn. She and her husband had become protectors of the new nuclear family of their son.
When this stage is reached she becomes the second head of the family with rights and duties equal to her husbands. As she welcomed her first daughter-in-law, she became the second head of her family! In the Brahma pattern, the husband had a greater say till her son was married. After that, the wife got an equal say. As a bride she had to honour her parents-in-law who were guardians of her stridhana and abide under their protective umbrella. As she became a mother-in-law, she got independent charge of her property. [Wild criticism of arranged marriages and the status of women in Hindu families must be avoided. The wives did become free to manage the affairs of the family but not immediately after marriage.]
In the Prajapatya pattern, creation of stridhana, womans property was optional, as the couple had got married without the initiative being taken by the fathers and after the bride and the groom had both attained the age of consent. [This is not to be confused with the Gandharva pattern.]
It was dharma-vivaha, marriage that was motivated by sense of duty to the family and not by lure of wealth or by lust. It envisaged equal status and equal rights and duties for the husband and the wife from the day the couple got married (sahadharma). The object was to procreate a son who would protect the aged parents. Hence the wife was not entitled to claim back her wealth, stridhana, if she had allowed her husband to use it for more than three years (17). [This bar applied only to Prajapatya type marriages, which however later deteriorated into paternal despotism but formed more than half of all marriages.] It was not obligatory for her parents to institute it and if instituted, it was not insured. But in the Brahma type her claim to it never lapsed, it may be inferred.
We are here discussing the position that preceded Mitakshara and Dayabhaga and when Prajapatya marriage (marriage with the consent of both the bride and the groom) was treated as dharma or sahadharma marriage and was distinguished from Brahma marriage (where the girl had not yet attained the age of consent). The watchful eyes of her parents would not bear her wealth being frittered away by her husband.
Dharma is used here as valid legally and not in a spiritual or religious sense. Dharma type marriages were those first approved by the civil judge, dharmastha, and then endorsed by the fathers. Svayamvara, the bride choosing a groom from among the many eligible candidates, also was dharma type. Brahma type did not require prior approval of the dharmastha and was arranged by the fathers. This rule appears to have prevailed till Kautilyan times. What did not involve an economic transaction or lust or force was called dharma type.
Hindu scriptures are often accused of having been contemptuous of women and of having ignored their rights. Modern, progressive and liberal democrats have voiced this complaint against all religions and all religious authorities. The venom spit by self-styled intellectuals of the left need not be taken serious note of. Champions of religion defend their respective scriptures against the attempts to undermine the faith of their followers in these. Such champions have been dubbed as fundamentalists. But they are not against progressive liberalism or democracy though they are not always rational.
Women all over the world have been treated as the weaker sex. The weak have to be protected and not exploited or discriminated against. Positive discrimination in favour of the weak is necessary. According to Kautilya, the state is required to protect the weak against the mighty. Arthasastra, the politico-economic code has redefined dharma, the duties of the four classes (varnas) and the four stages of life (asramas). It has also redefined the duties of the king and the role of the state. It has redefined also the eight types of marriages, from the artha (socio-economic) angle.
The Brahma type is the best as it provides to the bride the best legal and social protection. Kautilya grants the status of dharma marriage to Prajapatya type of arranged marriage and treats it as next only to the Brahma type in merit. Dharma represented what was accepted by a majority of the people as normative, natural and correct. It is wrong to presume that dharma is what the ecclesiastical authority has approved on the basis of its interpretation of the Vedas and the Sastras.
It accepted the validity of the seed and soil equivalence theorem and allowed a marginal bias for the male. The prajapatya marriage (sahadharma) gave equal status for husband and wife but the husband had more responsibilities and hence required more rights, it was held. The Brahma type, the purely dharma type, asserted that there was no need to suspect the motives of the fathers and husbands. It was the ideal, which however only a few could follow though it was thrown open to all. In the vivaha dharma, law of marriages, as recognized by Kautilya, no pattern was restricted to a particular social sector only.
The Gandharva pattern of marriage, voluntary union of adults, was more common and more widespread than the Brahma and Prajapatya types, which were arranged marriages. In the Brahma marriage the brides were below the age of consent and often had not yet attained puberty. In the Prajapatya marriage they were adults but virgins. In Gandharva marriage, the husband and wife had both their separate entitlements, each his or her own property, income and liabilities. The Kautilyan rule requiring that both mothers and both fathers must endorse this marriage introduced a radical change in the then prevalent social practices. Gandharva marriage is not to be passed by as mere love marriage, a revolt by the boy and the girl against parental authority.
Gandharva culture did not recognize the principle that the child is father reborn, which was the guiding spirit behind the dharma type of marriages. It did not accept the principle by which the sons (and not daughters) inherited their fathers property and the eldest son asserted his claims under primogeniture. It followed the principle of lateral succession, by which the younger brother stepped into the shoes of the elder after a specified period and the youngest brother was succeeded by the son of the eldest. It tried to prevent fragmentation of holdings. The principle of lateral succession was extended to the duty of the younger brother to co-habit with and protect the widow of the elder brother. [Unless all the four parents approved the voluntary union, the judiciary did not validate it, for it had an impact on titles.]
The union based on lust (kama) did not bind the partners for life and the two could part company as either felt it expedient to do so or found it uncomfortable to continue it. Hence, divorce and remarriage were more common than life-long partnership, which was envisaged by the Brahma and Prajapatya types. The state had to regulate all types of marriages in the interests of the offspring and the women. Vivaha dharma as Arthasastra promulgated took care of this requirement.
It is regrettable that modern Indian sociologists have failed to free themselves from the stereotypes floated and wrong postulates advanced by the western scholars about the traits of ancient Indian society. They have hence not been able to present a rational analysis of the different forms of marriage that were in vogue during the later Vedic and early post-Vedic times. In the Gandharva marriage even if the parents and the civil judge (dharmastha) gave permission to the couple to stay under one roof (with the house being sanctified by the three fires), the husband and the wife functioned independently. The fathers brought up the sons and the mothers reared the daughters. This was the natural trend and the dharmasastras had to acknowledge this for purposes of economic transactions concerning property, vyavahara.
In families that were formed of Gandharva marriages, it was the mother who determined her daughters future and not the father. [Brahma marriage did not feel it necessary to ascertain the views of the mother before arranging the marriage of the daughter.] Stridhana had its roots in this pre-Manusmrti practice. The new economic law as outlined by Kautilya required that all transactions should bind the husband and the wife equally. Most of these voluntary unions did not click when the burden of bringing up sons and daughters increased. Hence, Stridhana had to be insured against misappropriation whenever instituted. The husband, who withdrew any amount from it had to return it with interest, Kautilya prescribed (3-2-18).
Under the earlier Gandharva system, the rule of lateral succession was followed and property that was meagre was not fragmented among brothers. But the later Gandharva system accepted the sons as heirs to the fathers property and the daughters to the mothers property. The later Gandharva system was a composite of the traditional Gandharva and Apsara practices. It did not acknowledge the Brahma and Prajapatya types, which insisted on equal claims for sons and daughters. [Readers may reconsider certain stands, which have vexed the framers of Hindu Law of succession.] Kautilya prefers this system of equal claims while trying to meet the Gandharva practices.
The Arthasastra permitted a common pool of earnings besides paternal property which was in the form of fixed assets and which was inherited by the sons and maternal property (stridhana), which was mostly in cash and as ornaments and which was inherited by the daughters. This common pool and the womans property were kept insulated against claims by kinsmen, dayadas. Both sons and daughters could share equally what was in the common pool. In the upper economic strata, stridhana included lands and houses. Only the sons could inherit these. Often the grandfather assigned his property to the daughters son as well as to the sons son with equal kindness, though she being of the weaker sex would not be able to protect her property. Where there was no will made out it was presumed that both grandsons inherited the grandfathers self-earned property. Stridhana might include lands, which would be inherited by the daughters.
The Kautilyan code forced the Asura type of marriage to accord protection to stridhana despite its paternal despotism. While Bhrgu and other editors of Manusmrti permitted Gandharva type (voluntary union) to all sections of the society and banned Asura type (purchase and sale of girls for marriage), Kautilya adopted a pragmatic approach. It was only in Rakshasa (abduction) and Paisacha (enticement) types there was scope for mischief. Here, if the parents of the girl had assigned to her stridhana, even temporary withdrawals from it by the husband or his parents was made illegal and was treated as theft and penalized.
[It is necessary to once again urge that sociologists are expected to present the features of every one of these eight types of marriages correctly and not to get carried away by the demagogues and ideologues. Ancient Indian society exhibited the presence and influence of different kinds of social systems and social and cultural values. It is unsound and irrational to presume that it was marked by a single pattern of value system.]
The Asura type payment of sulka to the bride and her parents had a rationale, the Arthasastra acknowledges, though Manusmrti condemned it as outrageous. Strictly speaking it was blatant purchase and sale of girls. Unlike the Gandharva culture, which valued the fraternal bond between brother and sister and the filial bond between mother and daughter, the feudal (Asura) culture showed gross contempt for the rights and interests of the women. It treated the wife as but an agent for procreation. [Other types of marriages did not do so.] It coerced her to offer herself for sex and service as a slave at her husbands command. Dharma marriages were free from this undesirable trait.
However as all services could be evaluated in monetary or material terms, the woman, whether a wife or a daughter, was entitled to payment of wages in addition to food, even as the bonded labourers, dasas, were paid wages and fed. The Brahma, Prajapatya, Gandharva and Daiva types did not evaluate her services as a mother or as a companion or as a manager of the household or as a co-earner in such purely economic terms. In the Asura pattern only, the husband was the master and the wife was a servant, almost a slave. It is wrong and unjust to present the stand that the entire Hindu society treated the wife as a slave. There has been a continuous battle against this Asura culture and value system.
Kautilya felt that the state should intervene to free the wife from the status of a purchased slave and to raise her to the status of a paid employee protected by the state. She must be free to quit the services of her husband-cum-master if he ill-treated her and choose another husband who would treat her well. The maintenance allowance due to her was calculated and determined. Sulka was what she had earned and it became payable to her if she were set aside for no fault of hers. Even as stridhana was an endowment instituted by her parents and was to be released by her husband when she needed it, the unpaid portion of the maintenance allowance had to be released to her if the civil court upheld her claims. Sulka paid in advance to the bride or her parents at the time of marriage, was held in objection, but the sulka to be paid during married life was not so held. Law regulated stridhana (brides property) and sulka (wifes maintenance allowance). Law has to be backed by the power of the state if it has to be effective.
Dharmasastras gave more respect to Brahma, Daiva, Prajapatya and Arsha types of marriage than they gave to Gandharva, Asura, Rakshasa and Paisaca types. Only Kshatriyas were permitted to resort to Rakshasa type. But even the Brahmans could follow the Gandharva type. Brahma marriage was not obligatory even for the Brahmans. Kautilyan Arthasastra introduced the new code, vivaha dharma, bywhich all the eight types were open to all the eight social sectors of the later Vedic times and all the four classes formed by the Dharmasastras. But it introduced new conditions.
The first four types needed the approval of both the fathers and the other four of all the four parents. Marriage was made a socio-economic contract binding not only the bride and the groom but also their parents and brothers. It did not merely specify conjugal rights. [The state and the society cannot be described as following a rational system of justice if it is unable to enforce a single system of marriage for all the sections of the population and /or does not throw open all the systems to all the sections of the society.]
Vivaha dharma was a secular (state) law governing the livelihood and assets of the members of the family newly set up by marriage between the members of two different families. The first four types (Brahma, Prajapatya, Daiva, Arsha) were rooted in the principles of dharma and the other four in economic interests, artha, or in lust, kama. Arthasastra would however treat all types of marriages as being dependent on economic resources, artha, of the family, to ensure the welfare of all its members. It had to become stable and economically sound to remain a happy unit.
Marriage (except in the case of Gandharva marriage of some categories, to be precise except in the case of apsara marriage) required the bride to leave her parental home and identify herself with the interests of her spouses home. In the first four types, she was a gift received and was to be received and treated with honour. Her welfare was ensured by the stridhana gifted to her by her father and augmented by others including her husband and in-laws. She was not a burden got rid of by her parents and cast on another family. In the other four types it was voluntary union (Gandharva) or purchase of bride (Asura) abduction (Rakshasa) or enticement (Paisaca). This distinction is to be borne in mind as we proceed to examine the provisions of the law of marriage, vivaha dharma, promulgated by Kautilya.
Childless Widows and Widows with Children
Having once left her parents home, the girls destiny was entwined with the fortunes of her husband and his home. If she became widowed and was childless and did not wish to be a burden on her in-laws and instead preferred to lead a pious life (dharma-kama), that is, to become a nun (of a religious order) under a respected teacher (guru), her kinsmen were not to bar her. [One had to obtain the permission of the civil judge, dharmastha, to become a monk or nun.] She had to be handed over her stridhana, which was in the custody of her husband. She had to be paid also the balance of the sulka, maintenance allowance due to her for the rest of her life, calculated and paid in aggregate as she left their home (19). Withholding it was an offence.
As a girl got married, the entire expenditure on her maintenance was calculated on the basis of her expected life span. As long as she was in her parental home, her parents met the expenditure on this count. The Asura type of marriage involved payment of the expenditure already incurred by them before the groom bought her services, physical and sexual. This payment was known as sulka. Or the girl was enumerated in advance for the services she had contracted to render to her husband. This payment also was called sulka. This too was Asura (feudal) type.
But in the dharma type of marriages, these services were not being bought or sold. The bride had been promised protection without any monetary condition. The groom and his kinsmen, dayadas, would maintain her for her entire life. She was not to be returned to her parents after her husbands death. Her willingness to serve her husband had never been in doubt though her own need to get sex within the marital union had become unfulfilled by her husband predeceasing her. So the kinsmen were asked to pay her the maintenance allowance, sulka, as she left the house to become a nun. Had she stayed back she would not have received it.
Most often, these were widows who had no sons or father to fall back on and with no plans to get remarried or get employed. They needed money to keep themselves alive. Very few with children would have left the husbands home as these children had shares in the family state. But to be a nun was too tough an ideal to adhere to. Many found it expedient to remarry and some remarried to fulfill their sex urges. If after receiving the above sulka, a widow got remarried, she forfeited her claims to it and had to return it with interest (3-2-20). Some scholars have interpreted that she had to return her ornaments too. These were her property, stridhana, gifted by her father and even her husband was not its owner and had no right to use it.
Hence the kinsmen could claim only the ornaments given by him and his parents, if the widow remarried. Some widows found it necessary to remarry in order to maintain their children by the first marriage.
Remarriage was more common than what modern jurists have thought to be the practice in ancient India.
The term, kutumba-kama, must be interpreted correctly. [It meant attachment to her nuclear family. It is not equivalent to desiring to have a family.] As the widow got remarried in order to protect her children by her first husband his kinsmen could not prevent her from retaining the ornaments and the maintenance allowance, sulka, mentioned above (21). It was the responsibility of the second husband to maintain her and her children by her first husband.
As she had originally married by the dharma type (by kanyadan), her father ceased to have any claim over her or any duty to her and her children and these had devolved on her father-in-law. Hence the father of her first husband could stipulate whom she could marry (in the interests of her children by her first husband) (22). Often the choice fell on her younger brother-in-law. [The reader may note that while social codes discouraged voluntary remarriage, remarriage was forced on the widows against their desires.] Many widows were young. It was not desirable to deprive them of the fulfillment of their sex urges.
If the widow refused to accept the person chosen by her father-in-law and opted to marry one of her own choice, it became Gandharva marriage and she forfeited all claims to what her first husband and his father had already given her and agreed to give her (3-2-23). Permission for remarriage was not denied but the widow was not allowed to take the kinsmen of her first husband for a ride. Civil law tried to protect the interests of all concerned.
[The rights enjoyed by women during the ancient times should be presented without distortion. It is not academic honesty to state that Hindu scriptures permitted no rights to wives and that they condemned widows to a miserable life.]
The next statement (24) is intriguing. [We would reject the translations effected by Shama Sastri and Kangle.] Sometimes brothers took away their widowed sister forcibly from the protective umbrella of the brothers of her deceased husband. Even if she did not remarry she had to return the amounts received by her from her deceased husband and his parents to his jnati (brother). She might take away only what was given to her by her father as stridhana. [Forcible appropriation by her brother, a common event, was treated as theft and made punishable. This case was transferred from the family court to the criminal court.]
Kautilya allows the widow to remarry but does not tolerate exploitation by any one, be it her brother or her brother-in-law. She was not to be kept as a slave either of her parental home or her husbands. If she remarried, the second husband had to agree not to use the amounts given to her by her first husband and his father (25). The above rules were applicable not only to widows but also to wives who were deserted by their husbands and were hence eligible to remarry after the stipulated period of waiting for his return.
Remarriage of widows was common and was regulated by law. Very few marriages were of the Brahma type, which alone treated the bride and the groom to have been married for eternity. It is wrong to hold that Hindu Dharma disapproved or prohibited remarriage of widows and of abandoned wives. Such disapproval was a considerably later development, to be precise post AD 1700. No Hindu scripture has permitted burning of widows. It was an aberration that set in after AD 1000 when uncivilized Central Asian hordes began to ravage the plains of north India.
A woman who remarried lost all her claims to what she had received from her first husband (26). She was not permitted to take away the property left behind by the missing husband if she had chosen to marry and live with a man not stipulated by her father-in-law. But she was allowed to enjoy that property if she intended to leave the house of her father-in-law and live as a pious woman. [Arthasastra protects the woman in distress against her husbands kinsmen but does not allow scheming women to defraud them.]
The expression, dharma-kama (desire to lead a dutiful life) included the right and duty of a widow to bear a son who would perform her last rites and also the annual rites for her predeceased husband. She could exercise this right preferably by marrying a kinsman (jnati) of her first husband and with the permission of her father-in-law. But she was not bound by these conditions, which were artha based and not really dharma based as they were intended to retain the property in the same clan. Dharma-kama has a deeper significance. The performer of the last as well as annual rites for the deceased ancestor does not ipso facto become eligible to inherit the property of that person.
The money left behind by her deceased husband was meant for the maintenance of the widow. She would bring up the son born to her by her first husband without the assistance of her second husband (27). This son was not the product of lust or an economic necessity, a son on whom she could fall back on in old age, but was meant for performance of a specific ritual, which was later identified as fulfilment of the aspirations of the deceased and liberation from the cycle of births. This orientation was included under dharma.
If she had sons from the absent husband, she was not permitted to seek the refuge of another person. She had to protect them with the help of her stridhana, as the object of dharma had already been met by the birth of those sons. Her seeking another man would amount to her meeting her kama (sex) needs and not dharma duties or economic (artha) necessities. Violation of this rule (27) would lead to her forfeiting even the stridhana given by her father at the time of her first marriage (28). Of course, her father-in-law would withhold the maintenance allowance, sulka.
But the kinsmen of the first husband could not attach the stridhana. Her brothers too could not attach it. She could not endow it on her daughters by another marriage. If she had only sons by her first marriage they could claim it (29). It was presumed that the object of the second marriage was to beget daughters as she had already got sons by the first marriage and that she intended to leave her property, stridhana, to her daughters and not to her sons, vexed by her first husband having abandoned her. [This rule has often been interpreted irrationally.]
Kautilyas approach to the issue of inheritance differed from those of others. [It may be noted that modern Hindu jurists have tended to follow the interpretations of the dharmasastras, which the medieval commentators had given. They have tended to ignore the stand taken by Kautilya who they held was a heterodox writer.] Stridhana was not meant for inheritance along the female lineage exclusively nor was the husbands property meant for inheritance by the male lineage only. Stridhana had a specific purpose. It helped the wife to run the family as its second and alternative head in the absence of her husband.
If she remarried in order to maintain her sons by her first husband she might not only retain the stridhana given to her on her first marriage but also receive further contributions from his family (30). Her father might contribute stridhana for the second marriage too. Kautilya adopted a liberal and pragmatic approach to the issue of remarriage of women (widowed or deserted).
However, the stridhana received for the first marriage would be inheritable by the children by the first marriage and that for the second marriage by those by the second (31). Separate identities of the two amounts are maintained. A woman was not debarred from remarriage. Remarriage was not uncommon. But while a man could have more than one wife at a time, a woman could not have more than one husband at a time. During the early post-Vedic times, polyandry [which characterized the Apsara culture that upheld the rights of the woman to chart their own course of life without interference by her parents or by her husband(s) or by her brothers] was discouraged, while polygamy [that was permitted by marriages other than the Brahma type] was not interfered with.
A woman could remarry only after assigning her stridhana for the first marriage to her children (preferably daughters) by that marriage (32). The court had to safeguard their interests. The second husband should have no chance to gobble that amount or be lured by her being in possession of that wealth. The second marriage had to begin from scratch and not be built on the assets of the first.
A sonless woman (whether a widow or one separated from her husband) who had become a disciple serving her teacher and who did not want to betray the memory of her husbands bed was permitted to use the stridhana with her till the end of her life (33). For stridhana was meant for protection during such a calamity (34). It was an insurance against destitution. After she died (interstate), it could be claimed by the dayadas, kinsmen of her diseased husband and by the sons of his other wives.
Kautilya does not treat stridhana as inheritable only by her daughters. It was an endowment instituted by her father to protect her interests. After her marriage, she was to be protected by her husband or by her father-in-law or by her sons. It was not necessary that married women who were separated or widowed should be protected by their mothers or by their daughters. Only till her marriage a woman was protected by her father and nurtured by her mother. The kinsmen of her husband could inherit the stridhana only if she died without any issue (35). The daughters were not to be thrown to the wolves.
If a wife predeceased her husband, her stridhana would be divided equally among her sons and daughters. If there were no sons, the daughters would get it. If she died childless, her husband could take it (36). Her father could not take it back. [This proviso might have led to the mysterious deaths of young wives. Stridhana, which was instituted with a good intent, became the enemy of the newly wedded girls.] The widower could not attach the maintenance allowance (sulka) and other gifts, which she received from her brothers (37).
Here sulka refers to what the husband or her father had paid to the bride and her father at the time of marriage but was reassigned by her father later as an asset similar to stridhana. It implies that the brides father could not take back the stridhana, which he gave to his daughter and the groom and his father could not take back the sulka, which they had given her. Both had been given voluntarily and a voluntary gift could not be rescinded. This proviso prevented the institution of sulka from gaining the trait of Asura type of purchase of girls and their surreptitious killing. The brothers of the bride were kept on alert.
To prevent such killings of wives, it was necessary to permit supersession of a wife by the husband. A wife found to be sterile could be superseded after eight years. If there had been stillbirths the husband had to wait for ten years. If she gave birth only to girls, he had to wait for twelve years. Polygamy was discouraged but not banned. Remarriage by the husband even while the first wife was alive was allowed, but the waiting period was prolonged (38,39). Hasty supersession had to be prevented. Kautilya could not get rid of the evil of the longing for a son.
A husband violating the above rules was penalized. He had to pay maintenance allowance (sulka) for the rest of the expected life span of the wife, release her stridhana and pay half that amount as compensation for hasty supersession (40). Besides, the family court fined him 24 panas. A husband who waited patiently for the prescribed period could remarry after paying the sulka and the stridhana (41). This rule was applicable in the case of dharma type marriages.
If the brides father had not instituted stridhana (obligatory only under Brahma type marriages) and if the husband had married her under Gandharva or Asura type, he had to pay the estimated sulka and half of it as compensation for supersession. [The compensation might have been about 1000 panas. Only the rich could have afforded the luxury of supersession.] If these conditions (not easy to meet for the lower classes) were fulfilled, he could marry any number of times. But he could not remarry until the previous wife had been superseded.
The poor could not afford polygamy and could not break monogamy. The rich could afford polygamy but it was banned. They could however use the provisions of supersession to negate monogamy. Supersession was costly and the expenses were deterring enough. Kautilyan Arthasastra had to acknowledge the force of public perception. What in the long run is the object of getting married? To beget sons, women are necessary (42). This obsession, to beget sons, was and has been and is still too strong to be wished away. Marriage is not meant only for licensing sexual intercourse.
The ideal practice by which a man married only one woman and remained a widower after her death and a woman married only once and predeceased her husband and neither had premarital or extramarital sex, was honoured more in breach than in practice. Remarriages of widows and abandoned wives were common even as supersession of wives and remarriages by men were common. Monogamy might have been common but bigamy and polygyny were not uncommon. Divorce was equally a common practice. [Sociologists may note.] [We have deliberately refrained from comparing the provisions of the Arthasastra with those in the different Smrtis. Some scholars have noted the similarities between Kautilya and Katyayana.]
A woman was entitled to seek divorce. But the grounds were not the same as those permitting supersession of wives. A wife could divorce a man who was morally degraded (neecha) or was a social outcast (patita) or was a lunatic or was found impotent. The local court could allow the application of the wife for divorce if the husband had fled the country or had been found guilty of sedition (48). Cruelty or economic exploitation of the wife was not adequate ground for divorce, it may be noted. Superseded wives could not remarry but wives who had secured divorce could remarry. Supersession was tougher than divorce for disobedient wives but not economically unfair.
While protecting the interests and rights of the wives and taking precaution against wanton harassment of women, Kautilya was aware that there were wayward women who did not deserve sympathy. Disloyal wives had to be punished. Kautilya levied fines up to 24 panas for misconduct. A fine of 54 panas was levied for accepting money or gold from other men. The seducer was fined double that. The state took steps to curb vagrancy, fined the guilty and punished adultery. All penalties were in monetary terms. Of course, Kautilya did not hesitate to recommend whipping in public for serious offences (3-3-28). It was intended to deter others.
But he did not prescribe imprisonment or mutilation of limbs or other forms of corporal punishment. Punishment was intended to correct the offender and to deter the likely offender. It was not an exercise in revenge or an exhibition of male dominance. A married woman could not claim the stridhana (given by the father) and the sulka (paid by the father-in-law) and the compensation (paid by the husband or his family for supersession) if the court allowed her supersession for vagrancy and disloyalty to her husband.
In Dharma-Vivaha, there is no provision for divorce (moksha) as Kautilya points out (3-3-19). By Dharma-Vivaha, the four types, Brahma, Daiva, Prajapatya and Arsha were meant. They were open to only Brahmans according to Dharmasastra and to all according to Arthasastra. These Brahmans were engaged mainly in studying and teaching Vedas and in officiating as priests at sacrifices. Only a very small section of the society, the ecclesiastical leadership alone was required to treat marriage as an indissoluble bond.
The courts could not entertain an application from a wife married by one of these types for freedom from the bondage she found herself in. Her consent had not been taken in Brahma marriage and she had been married before she attained the age of consent. In Prajapatya marriage she had consented to float or sink with her husband and hence neither could get rid of the other. Daiva and Arsha types were social welfare measures and release from marital bond would mean economic and social disadvantage to the wives. [It is not correct to translate dharma-vivaha as religious marriage.]
Of course, the dharmastha, the civil judge had to take note of these aspects if the two fathers had given consent to the marriage. He could not stipulate any conditions on the partners for they were acting under the direction of higher social authorities, the elderly fathers who had retired from economic activities (pitaras), nobles (devas) and sages (rshis) and the chief of the people (prajapati). [Many of these pitaras were authoritarian like the asura feudal lords and had bbelonged to that cadre.] The judge ranked lower than these social authorities. But the other four types had to follow the rules of marriage, separation and divorce as prescribed by the state under Vivaha-Dharma.
Gandharva (voluntary union) marriage was the most widespread of the eight types and here voluntary dissolution was implicit though it might not have been resorted to too often. The harassed wives, who had got married under Asura and the rare types, Rakshasa and Paisacha types too were allowed the benefit of divorce. A deserted wife and a woman who had secured divorce could remarry with the permission of the dharmastha (3-4-35). This permission was contested by many as being in violation of the dharmasastras. Kautilya explains the rationale behind this permission. He holds that the frustration of the wifes urge to have sexual intercourse (after menstruation) amounts to killing of dharma (that is, killing of the egg that is awaiting union with its sperm) (3-4-36). What is natural, Rta, is Dharma.
Dharma should not be interpreted only as sublimation of natural tendencies (Rta), forcing all widows and superseded and deserted wives to become nuns lest they should take to vagrancy. Dharma lies in regulating the natural urge for sex and to keep its expression within the fold of approved marriage. Hence remarriage of widows and deserted wives was not against dharma and Kautilyan judiciary allowed it. If a woman had sought and obtained divorce she could marry again but if she had been divorced for disloyalty her second marriage was not approved. This is a profound defence of the provisions made in the law of marriage, vivaha-dharma.
The presumption that Brahman priests were empowered to sanctify marriages and that while they permitted supersession of wives they did not permit remarriage of women is unwarranted. The Brahman priests did not enjoy such powers. These powers were vested in the civil judges, dharmasthas. They were not necessarily Brahmans. The state code, vivaha-dharma, protected the interests and rights of the women even while punishing the vagrants and adulteresses. Amorous affairs of married women with paramours were punished (3-4-42). The paramours too were sentenced.
Dharma marriage entitled a deserted woman to marry a kinsman of her missing husband. Permission of the court was necessary to marry another person. The kinsmen could not coerce her to marry one of them. Kautilya does not permit extramarital sex and indulgence in lust. But he permits fulfillment of the natural need for sex provided it is within the fold of approved marriage. He does not look at sex and marriage from an economic (artha) angle, though he is keen that rules of marriage should protect the economic needs of the wife and her children. The dharmastha followed the state code, vivaha-dharma, with respect to marriages as interpreted by the constitution of the state.