Chapter XXV. Strīsangrahanam (Adultery or unlawful intercourse with a woman)

Volume III pp. 531–537

Chapter XXV. Strīsangrahanam (Adultery or unlawful intercourse with a woman)

STRĪSANGRAHAṆA (Adultery or unlawful intercourse with a woman ).

The Mit. ( on Yāj. II. ¹ 283 ) states that saṁgrahaṇa means the unlawful coming together of a man and a woman for sexual enjoyment. Br. (S B. E. 33 p 365 verses 1–2) says that sinful² saṁgrahaṇa is of three kinds, viz. brought about by force, deceit or sensual passioṇ The first (which is rape) occurs when intercourse is had in a secluded place against the will of a woman, or with a woman who is intoxicated or is disordered in mind or is under a mistake or when she raises a cry; the second occurs when a woman is brought to one’s house by some trick or pretence, an intoxicant (such as Dhātura) is administered to her or her mind is brought under control (by chants or otherwise) and sexual intercourse takes place; the third occurs when intercourse takes place by conveying (passion) to each other by means of the eyes (glances) or by employing a go-between and when the parties are drawn to each other by the temptation of beauty or of wealth. This last is again of three kinds acc to Vyāsa and Br. (S. B. E. 33 p. 365–66 verses 6–8 q. by Sṃ C. II. p. 8) viz. trifling, middling and grave. The first is characterised by winking at a woman, smiling at her, sending a go-between, touching her ornaments or clothes; the second by the sending of flowers, unguents, fruits, incense, food, clothes, and indulging in private talks; the third is characterised by lying on the same bed, dalliance, kissing and embraceṣ Strī-saṅgrahaṇa by force (that is rape) is really included under sāhasa,³ as stated by the Madanaratna, the V. P. pp. 396-397 and otherṣ The punishments for rape were very heavy. Br (S. B. E.⁴ 33 p 366 verse 10) states that if a man commits rape on a woman of the same caste, he was to forfeit all his property, to have his penis and testicles cut out and was to be paraded on the back of an ass, that if the woman raped was of a lower caste, then half of this punishment was to be awarded and if she was of a higher caste, he was to be sentenced to death together with confiscation of all property. Kāt (830) prescribes that when⁵ a man has forcibly had sexual intercourse with a woman capital punishment is to be inflicted inasmuch as it is a violation of (proper) conduct. When sexual intercourse was had by deceit the man was punished with confiscation of all property, with branding on the forehead of the sign of the female private parts and banishment from the town (Br. in S. B. E. 33 p. 366 verse⁶ 11). Here also the rule of Br. cited above (about the reduction of sentence according to the caste of the woman concerned) applieṣ In the case of rape and sexual intercourse by deceit the woman was not at all punished⁷ but she had to undergo a penance (prāya-śčitta) of kṛcchra or parāka for contact with a male other than her husband and till she performed the prāyaścitta she was to be kept well-guarded in the house, was to remain dirty (i. e. III ] not to deck herself or apply or use perfumes &c.), to lie on the ground (not on a bed-stead or couch), was to receive bare main-tenance. After performing prāyaścitta she was restored to her former positioṇ Acc. to Yaj. II. 286 and Br (S. B. E. 33 p. 366 verse 12), for adultery (in which there is consent) the highest fine is prescribed for the male in the case of a woman of the same caste, half of this in the case of a woman lower in caste (than the paramour), but when adultery is committed with a woman of a higher caste the male shall be put to death and the woman shall have her ears and the like cut off. Vide Shakespeare’s Othello IV. 1, where Othello exclaims ‘I see that nose of yours but not that dog I shall throw it to’ There were other sages who were humane and opposed to the punishment of disfigurement by way of the cutting of the ear or the nose. Yama⁸ states that in the case of a woman guilty of adultery at her will, there was to be no punishment of death or disfigure-ment, but only abandonment. Kat (487) lays down the general rule that in all offences women should be sentenced to half the fine in money which is prescribed for a male and that when the punishment is death for a male the punishment for a woman would be cutting off a limb (vide note 626).

Nār. (XV. 73-75) holds⁹ that sexual intercourse with the step-mother, mother’s sister, mother-in-law, the paternal or maternal uncle’s wife, father’s sister, a friend’s or pupil’s wife, sister, sister’s friend, daughter-in-law, daughter, the wife of one’s vedic teacher, a woman of the same gotra, a woman that has sought protection, with the queen or an ascetic woman (pravrajitā) or a wet-nurse or a virtuous wife (sādhvī) or a woman of a higher caste is incestuous and the punishment to be prescribed for this crime is the excision of the penis and no lesṣ Vide Manu XI. 170-71, Kaut IV. 13,¹⁰ Yaj III. 231-233, Matsya- purāṇa 227 139-141, which latter (three) prescribe excision of the penis and death by way of punishment (except for a brāh-mana) and expiation and for the woman (if she was & consent-ing party) death sentence Brhad-Yama III 7, Ap (in verse) IX. 1 (Jivananda eḍ) and Yama (Ānandāśrama) 35 prescribe that there is no expiation except that of entering fire for incest with mother, teacher’s wife, sister or daughter It is remarkable that Kaut.¹¹ and Yāj (II 293) prescribe only a fine of 24 paṇas for adultery with a female ascetic, while Nār XV. 74 and Matsya 227. 141 deem it a most heinous offence The explanation probably lies in the fact that Kaut and Yāj refer to female ascetics of the lowest castes not following the orthodox religion, while Nār. refers to nuns of a higher order Vide Manu VIII. 363 also. For forcible intercourse with a prostitute against¹² her will Kaut, IV. 13 and Yāj. II 291 prescribe a fine of 12 and 24 paṇas respectively For unnatural offences or offences against the order of nature, Kaut IV 13, Yāj. II 289, 293, Viṣṇu Dh S V. 44, Nar. XV. 76 provide fines of 12, 24, 100, 500 paṇas¹³

Manu IV. 134 (= Anusasana 104. 21 = Markandeya-purāṇa 34. 63-63) forbids a man to have sexual intercourse with an-other’s wife and states that there is nothing so detrimental to long life as that There are stray indications in the Vedic literature about sexual intercourse outside marriage. Vide H. of Dh. II pp. 637-639 In Rg. I 92. 4 ( adhi peśāṁsi vayūnā anūr-ṇuva ) there appears to be a reference to a dancing girl or hetaira. Wives hating ( or proving false) to their husbands are believed to go to Hell in Rg IV. 5 5 ( patirpo na janayo durevãḥ ) In Rg II. 29 1 the sage prays to the Adityas ‘ remove away from me sin as a woman who gives birth to a child in secret removes it’ ( an e matkarta rahasūr-vāgāḥ ). The gambler (in Rg X. 34 4) states ‘others have intercourse with his wife’ ( anye jāyāṁ parī mrsantyasya ). The word pumsćali occurs in Vāj. S XXX 22. We have already seen (H. of Dh. II pp 576, 1098) how in the Varunapraghasa (one of the Caturmāsyas) the wife of the sacrificer had to confess if she had a lover and how even after III ] she confessed to having had one she was allowed to co-operate in the sacrifice on undergoing an expiation After a man perform- ed the solemn sacrifice called Agnicayana he was enjoined (Tai. S. V. 6. 8 3)¹⁴ not to approach a śūdra woman and after he performed Agnicayana twice he was not to approach another's wife (H of Dh vol. II p. 1255 ).

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

It has further to be noted that Yāj. II. 290 and Nār. (XV 79)¹⁵ make it punishable to visit a dāsī kept by a man in his own house or outside and Yāj prescribes the fine of 50 panas for so doing. Vide H of Dh. vol. II. pp. 637–639 about prostituteṣ But Manu VIII 362 states that the rules making conversation with others' wives in lonely places punishable does not hold good in the case of the wives of actors, singers and those who live on the earnings of their wives, since they themselves introduce their wives to others and make them mix among men (while they themselves remain concealed)

Stripundharma (duties of husband and wife). Most of the matters falling under this head have been dealt with in H of Dh. vol. II. pp. 556-592. The liability of the husband or wife for the debts of the other has been already dealt with under rṇādāna. The rights of partition, inheritance and maintenance will be discussed later on under dāyabhāga. Nār. XV. 1 defines this title of law as that in which the rules of the marriage of women and men and other related matters are describeḍ Under this head Nār. speaks of the essential ceremonies of marriage, the rules about selecting a bride and a bridegroom, restrictions as to the caste of the bride, the guardians for marriage, faults or defects in a proposed bride or bridegroom, the forms of marriage, women called punarbhū and svairiṇī, the practice of niyoga, illicit sexual intercourse, punishment of women for adultery, remarriage, varṇasańkara, mixed casteṣ In IX 1 Manu promises that he will dilate upon the obligatory duties of man and wife, whether they are staying together or apart. Manu IX. 2 holds that the first duty of the husband and the males in his family is to keep women dependent and under their control if they become attached to a life of pleasure and Nār. XVI. 30 states that even women of good family come to ruin by independence. The next most important matter acc to Manu IX. 5 and Br. (S B. E. 33 p 367 verse 2 )¹⁶ is to guard women against improper attach- ments however trifling, since if they go astray they bring sorrow to both families (of the husband and of the father). Acc to Hārita,¹⁷ Śańkha-Likhita,¹⁸ Manu (IX. 7, 9) and others the husband has to guard the wife from the approaches of other men in order to ensure the purity of the issue and by guarding her the husband guards his reputation, family, soul and his dharma. III | since a woman gives birth to a son similar to the male with whom she consorts or on whom she sets her heart during the days after the monthly illnesṣ Here there is some anticipation of modern Eugenicṣ Manu IX. 10 was quite clear that women could not be completely guarded by confining them with force in seclusion, that their minds must be occupied in family work as stated by him in IX 11 and by Br. (S. B. E. 33 p. 368¹⁹ verse 4), that the husband must try to deserve her regard and affection and show her honour (Manu IX. 22–24, 26, Yāj. I. 82). Divorce has been already dealt with in H. of Dh. vol. II. pp 619–623 Vide ‘Selections from Peshwa's daftar’ vol. 43 p. 112 where the divorce of a woman (ghatasphota) is ordered because the husband was really a converted Mahomedan who had been illegally admitted to caste after an incorrect method of expiation