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Jurisprudence of Hindu Marriage - Part I [concepts]

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Foreword:

My purpose in studying Indology is utterly selfish. It satisfies my curiosity, it thrills and excites me to take a look at distant past through the mists of antiquity. However, my purpose of writing about it is an endeavour to bring forth decorous aspects of the vast legacy of thought that the scholars of the bygone era left for their posterity. "Yogakshema

" (yogaxema) is a Sanskrit word which means acquisition of new while preserving the old. The word is predominantly used for wealth and property. However, it is equally applicable for knowledge. Progress, after all, is imbibing the new ideas while preserving the decorous elements from the past.

 

[I] Who invented the concept of Marriage ?

This is one question whose answer continues to elude Indologists and Historians. There is absolutely no authentic record of state-of-affairs of a society sans marriage. Hindu mythology puts onus on one Shvekaketu the son of Udalaka in the kingdom North of Kurus who officially banned promiscuity and ushered in the concept of Marriage.[1] However, it is been held that both the kingdom of Northern Kurus as well as Shvekaketu cannot be anything but mere mythological figures emanating out of poetical imagination (also ref: Kane et al) [2].

The ‘Vedas' which were composed for over at least a millennium and were in existence much before the composition of the famous epic "Mahabharata" do not talk about society sans marriage. In fact Rigveda (X, 85, 36-41) defines marriage as an instrument through which man becomes a householder and bears children. Large part of the Hindu population in the peninsular India and Nepal has been used to wife being termed as man's ardhaangini (‘ardhaa~gginI'). The word means one half of the body. This concept originates from the verses in Shatapat Brahman Grantha - a treatise of the Vedic period. [3]

The famous epic "Mahabharata" which was composed around 3000 B.C [4] describes sophisticated form of marriage with elaborate rituals and customs and talks about laws of inheritance of property and other aspects of a well-developed jurisprudence.

[II] Manusmriti - Predicament

Given the fact that one female with many men can produce maximum of one human baby a year and many babies can be produced if the equation is reversed it is clear that in the process of conservation of human species which is the prime objective (or brahma-uddiShTa), it is the woman who takes the centre stage and the men, by and large, are expendable. As a corollary to this, it is the woman who should be protected and the men must be motivated to do so. Motivating men was easy; glamorising valour and machismo seemed to do the trick at least to the extent of protecting women from physical assault by wild beasts or by enemies.

As civil society developed, the concept of "protection" acquired a whole new meaning and concept of "exploitation" too began to rear its head. This is the classic philosopher's predicament in which Manu too seems to be trapped. Throughout the ‘Manusmriti', he is acutely aware that in order to achieve an orderly behaviour he must impose synthetic norms which may not come naturally to the most. In his own words, "balavaan indriyagraamo vidvaaMsam api karShati" (the senses are powerful, and master even the learned.") [5]. To attain his objective, he is aware that he must use language that is authoritative, forceful and bordering on arrogance. Therefore, on one hand, he seems to exalt women to the status of goddess stating unequivocally that, "a society where the women are unhappy the Gods get angry".[6] and on the other hand, he imposes such restrictions on the behaviour of women which, unless interpreted with understanding, could easily become tools of exploitation - something that lamentably happened.

Notwithstanding anything else, one thing in which Manu succeeds is in balancing the freedom with responsibility. To whomsoever he grants ‘freedom' he burdens them with responsibilities and he reduces responsibilities as he restrains behaviour. Anyone who is familiar with the process of drafting legislation should understand how difficult the task is. Much has been said about Manusmriti in the political realm of independent India. To blame the current "mess" on a man who wrote his treatise more than three millenniums back is intellectually not a palatable argument. That, of course, is a totally different subject. All things said and done, Manusmriti is indeed a significant document that cannot go uncommented in study of any human institution in the Indic civilisation.

Ironically, even the modern lawmakers at the advent of 21st century are seriously found wanting in the same area as Manu. For the purpose of illustration take the case of Section 498A of IPC dealing with "domestic violence" or the famous "Vishakha guidelines on sexual harassment of women at workplace" issued by the Supreme Court of India in 1997 [7]. Both legislations have been repeatedly criticised for being amenable to serious abuse. The heart of the problem is the same with which Manu seems to be grappling throughout his treatise - balancing freedom and protection.

[III] Different types of Marriages:

Manu classifies alliances between man and a woman into eight different categories viz. (i) Brahmya, (ii) Daiva, (iii) Arshya, (iv) Prajaptya, (v) Gandharva, (vi) Asura, (vii) Rakshasa (uncivilised), and (viii) Pishacya (satanic). The most major Sanskrit works post "Manusmriti" stick to this classification.

The last two types; viz Rakshasa where a woman is forcibly taken away against her will by slaying her family and/or kinsman and Pishacya where a woman is raped, seduced, and/or intoxicated and then wedded to are termed as most sinful acts (mahApAtaka) and obviously such alliances are neither accepted socially nor accepted legally as marriage.

In contemporaneous circumstances it suffices to say that first four types of alliances fall in the category which is termed in modern India as "arranged marriage" in which, as the name suggests, the bridegroom/bride is chosen by the parents/guardians of the girl/boy with her/his consent. The "Gandharva Vivah" (Sanskrit- gAMdharva vivAha) is similar to what is being termed in the modern times as "love-marriage" where boy and girl decide to become husband and wife on their own [8]. Manu seem to prefer the first four types of Marriages to the fifth (i.e. Gandharva). However, Vyasa is clear that first five types of marriages are socially acceptable between pure as well as mixed Varnas.[9]

[IV] Prohibited Marriages

Marriages between what is known as "sa-gotra" (i.e. of same Gotra or the same genetic tree) and sa-pinda (made of same particles of body) are strictly prohibited. The word sa-gotra, in the contemporaneous context, may be considered obsolete. Due to many migrations of population within the subcontinent at different points of time for variety of reasons, today it is common to find two individuals of the same ‘Gotra' who may not have a common ancestor even 50 generations back. Therefore, the Gotra concept in today's time is only of academic interest.

The word "sapiNDa" needs careful examination. The Sanskrit word "piNDa" means balls made of cooked rice and since Hindu funeral rites have a custom of offering balls of rice to departed ancestors, the kinsmen connected through such offerings are termed as sa-piNDa. Etymologically, sapiNDa also means, "made of same particles" [10]. It is this meaning of the word which is relevant here. Survey of the literature exhibits that there have been several different opinions regarding how many degrees of separation (roughly generations) would make an ideal pair. Nevertheless, the concept that both partners in the marriage must come out of different genetic tree (or from different particles of body) has been unanimously held by all scholars of the bygone era. The method of calculation of ‘degrees' from the father's side as well as from the mother's side has also been illustrated in different treatises differently. If Mitakshara (mitAxara), a commentary on the Yajnavalkya smriti (yAGYavalkya smR^iti), which is the most widely followed treatise in the current times is to be taken as a standard, then the girl should be at least 6th from the common ancestor traced from the mother's side and 8th from the father's side. Due to non-unanimity amongst the scriptures, each community in India has developed its own way of reaching to the conclusion about the eligibility.

[IV-A] Marriage between maternal cousins:

It is very interesting to note that despite the concept of sapinda being vehemently promoted by the scriptures, there are several communities in India where the marriage between maternal cousins is allowed. Manu is found forbidding such an alliance (Ch 9- v.172-173). However, the treatises accepting this custom place their reliance on Manu's secular tenet: "A king who knows the sacred law (Vedas), must inquire into the laws of castes, of districts, of guilds, and of families, and then settle the peculiar law for each" This tenet of Manu (Ch. 8, v. 41) was widely accepted by the ancient law makers. It is due to this tenet and the empirical experience of communities where such a custom was followed that these marriages were allowed and are still in vogue.

It must also be mentioned that if the words in Mahabharata (Adiparva) are to be taken verbatim then ‘Subhadra' who was sister of Lord Krishna was married to Arjuna. The union, strictly speaking, was an alliance between maternal cousins (as Lord Krishna & Arjuna were maternal cousins). This argument is used by few. However, since most of the Lord Krishna's relationships described in Mahabharata are "metaphoric" than actual, the argument is cannot be relied upon.

This example of permitting marriages between maternal cousins despite the "sapiNDa" concept being promoted unequivocally is among the several examples indicating that the ancient lawmakers were keen of unifying prevalent cultures and folk traditions rather than adopting a stubborn or dogmatic stand. This is one of the distinguishing aspects of law making in the Indic civilisation.

[IV-B] Inter-caste Marriages:

Even today across the peninsular India this word raises eyebrows. Though the impression has been created that the ‘inter-caste marriages' is a taboo only in the rural India or amongst the ill educated, it is not so. Even in the upwardly mobile urban India and amongst educated, Inter-caste marriages are not welcome. It is important, therefore, to trace the history of this phenomenon.

Manu, talks about "cAturvarNa" system consisting of four divisions of society viz. (1) Brahmins, (2) Kshatriyas (warriors/royals), (3) Vaishas (traders/farmers) and lastly (4) Shudras. [11]. Several castes and sub-castes which exist today did not exist in the ancient India. Amongst the above four divisions of society, Manu seems to have no objection to marriages between the first three; but he prohibits marriages between the members of first three Varnas with the fourth. As we move forward in time, during Mahabharata the marriages between all the four Varnas appear to have had the social and legal sanction and the designated Kuru King "Yudhishthira" is shown being counselled to keep the law unchanged (see ref. 9 below). Acceptance of the inter-caste marriages across all the four Varnas (termed in Sanskrit as mishra-vivAha) continued even during scripting of Yajnavalkya smriti and Arthashastra of Kautilya (i.e. during the Gupta dynasty ~300BC). Legendary Sanskrit poet and playwright Banabhatta (7thCentury AD) in his work Harshcharita speaks about marriages between Brahmins and Shudra in a manner that they were accepted and common within the society.

It was between the 10th and 11th Century AD, when the subcontinent plunged into chaos and eventually came under the foreign rule, that ‘mishra-vivAha' or inter-caste marriages appear to have been banned and made socially unacceptable. The custom has continued for more than a thousand years. During the British rule of India, despite the relentless efforts of many Hindu social reformists and thinkers who vehemently opposed this ban on ‘mishra-vivAha', only those inter-caste marriages between Hindus which were specially registered and solemnised under the "Special Marriage Act of 1872", were held to be valid by the British courts. Or else, even under the British rule, most judgements across the subcontinent indicate that Hindu "inter-caste" marriages (involving marriage with Shudra) were held legally invalid.

The modern Indian constitution adopted in 1950, aims to eliminate castes and vows to create a society sans any apartheid. Marriages between any castes, creeds, religions etc. are legally valid throughout the Indian peninsula today. However, the society, it appears is likely to take much longer to give up its one thousand year old habit.

[V] Age of Bride during marriage

This is another contentious issue even in modern India. Though the current laws of land prohibit marriages prior to reaching an age of 18 (for female & 21 for males). Infantile marriages or marriages of girls at a very early age (below 10) do take place. However, this custom seems to be prevalent mostly amongst the ill educated.

On the other side, I happened to read an article in the popular domain recently that contended that the modern Indian women in the metropolis are not willing to enter a marital relationship unless the man whom they would accept as a husband has proved himself. The society seems to have reverted back to repeat the cycle. This had been the way of life during Vedic period. The same appears to be the case during writing of Manusmriti and the Idea has been immortalised in Mahabharata through description of the wedding procedure of the leading lady "Draupadi". The feat that "Draupadi" wanted her would be husband to accomplish was not possible unless the man was extremely adept at the science of weaponry.

Many verses in the Rigveda can be cited which clearly indicate that the brides during marriage in the Vedic period were not "too young" [12]. It can be concluded that women during Vedic period either got married after attaining puberty and after finding a suitable match. (Several verses in Rigveda as well as Manusmriti supply emphasis on the match being suitable). At the same time, relying on the casual tone implied in the Rg. I -117 - 7&8 and Manusmriti Ch.9.Verse 89 which states, "(But) the maiden, though marriageable, should rather stop in (the father's) house until death, than that he should ever give her to a man destitute of good qualities." [13]; it can be inferred that there was no social stigma attached to "spinsterhood" during the Vedic period or even during the period of composition of the Mahabharata. In fact, the scriptures seem suggest this as a viable and honourable option in the event girl does not find a suitable match.

[V-A] Education of Women:

This essay shall not be complete unless few words are written about the education of women in the ancient India. There appears to be a correlation between the age of a bride and education. During the Vedic period, despite the beliefs in the popular domain, women were highly educated. Twenty-one of the major contributors to the composition of Rigveda (Rishis) are clearly identified as women e.g. vishvavArA, apAlA, ghoshA, kAShIvatI could be named as few of them. Also, contributions of maitreyI, gArgI vAcakanavI, vaDavA prAtitheyI etc to Upanishads and subsequent philosophical thought cannot be forgotten. Similarly, various conversations between Satyabhama (Lord Krishna's wife) and Draupadi in Mahabharata as well as the conversations between the Kuru King Dhrutarashtra (dhR^itaraaShTra) and his wife Gandhari indicate that women were educated and well versed in the art of governance, law and statecraft and their counsel was valued and often sought.

What caused the decline and eventual disappearance of education amongst women in a society that has always placed very high premium on knowledge and education is another riddle whose solution still eludes. What can be conclusively said is that during medieval times women were treated as "unfit (?)" for education and this belief continues to afflict the body of even modern Indian society. It is due to lack of education amongst women that early marriages of women seems to have come in vogue during the same period and mere obsession of getting daughters married (at any cost) developed and unfortunately it is a bane from which this society is still struggling to recover.

[VI] Difference between Hindu "vivaaha" and Western wedding:

Unlike the Western jurisprudence which views wedding as a civil contract between a man and his wife the Hindu concept of Vivaha is defined as a "Sanskara". The Sanskrit word Sanskara is a well defined e.g. Shabaravarya says:

"saMskaaro naamaa bhavati yasmin~njaate padaartho bhavati kasyacidarthasya ||"

[That action which makes any thing or anybody eligible for doing a particular act is called Sanskara - translation © Dr P V Kane].

Hindu Vivaha therefore, is an act that readies a man and a woman to convert lust into friendship, friendship into love, love into faith and finally faith into sacrifice. It is this graduation into different levels of sophistication of primal feeling of physical attraction that is expected out of the couple as they move through their life; and, having resolved to do this through various rites and rituals of the wedding, that the society subsequently grants them permission to procreate and raise children. Various wedding rites are intended to initiate and prepare the couple to undergo these changes in their feelings towards each other and, thus, "vivaaha" fulfils the above definition of Sanskara [14].

In summary, Hindu wedding involves mind, spirit and body and unlike the western concept it is not merely a civil contract that facilitates administration of law of inheritance of property.

[VII]Two important wedding rites and their significance:

[VII-A] Kanyadana (kanyAdAna) The word is clearly a misnomer. If it is split as ‘Kanyaa' (meaning girl) and ‘Dana' (meaning gift) all tenets laid down in the Vedas and associated scriptures would stand contradicted. The word ‘Dana' (dAna) is comprehensively defined by Yogeshwar Yajnavalkya as: svasvatavanivR^ittiH parasvatvApAdanam ca dAnam. [15]. This definition requires three ingredients to be fulfilled for a contract to qualify as ‘Dana' (i) The giver must have a clear title of what he is giving, (ii) The transfer of the title must be completely wilful and (iii) such a transfer when enacted is irrevocable under any and all circumstances. All scriptures are clear about the fact that writ of the parents over children is not wide enough to be called ‘title of ownership'. Perhaps such practise existed at the very beginning of the civilisation which makes ‘baudhayan dharmasutra' to categorically emphasise that right of parenthood does not tantamount to title of ownership. The sutra further insists that selling of children in any form is a "high level of sin" (or mahApAtaka). Manu in Manusmriti too is absolutely clear on this in Ch 3 verse 51-54 and is emphatic in stating that parents do not have the title of ownership of the girl/boy child. Therefore, the ingredients of the ‘Dana', as mentioned above, are not fulfilled; and, the word ‘Kanyadana' cannot be understood by splitting the words.

[VII - A(i)] Meaning of Kanyadana?

Having thus established successfully ( in paragraph VII-A above) that the word Kanyadana has nothing to do with "Dana" (Gift) of "Kanyaa"(girl chid) let us see what it actually means. There are words in Sanskrit language which are called ‘yogarudh' (yogarUDh) [16] i.e. words having a special as well as etymological and general meaning. To illustrate, take example of the word Pankaja (pa~jkaja). Though the etymological meaning of the word is "anything that grows in the mud" this word is used only to refer to "Lotus flower"; same is the case with the word "Shivaratri" (shivarAtri). This word is used only to indicate a special night associated with Lord Shiva which is the night before new moon (note: if the word is split as ‘shivam-ratri' it should mean "auspicious night" as in ‘shivam vastu' which means auspicious edifice). Similarly, the word Kanyadana is a yogarudh word which means an act where parental responsibility of an individual changes/transferred. What is transferred in Kanyadana is the ‘parental responsibility'. The word indicates change in the support system of the ‘girl'.

It must also be understood here that since the word Kanyadana has nothing to do with the meaning of Dana, this transfer of parental responsibility is not irrevocable. In the event, by the writ of the crown, the marriage is dissolved then the responsibility is reversed in the same order. Even in the modern era we are struggling with formation of strong and enforceable legislature on this and there are parents who refuse to admit their daughter/s back into their own house by quoting some obscure references to culture obviously with their own axe to grind - scriptures do not support such an outlandish stand.

[VII - B] Saptapadi (or saat phera):

This is the most important rite of Hindu marriage. It is taking a final and irrevocable step towards marriage. The rite is known as saptapadi and involves walking seven steps along with groom around the Homa fire (called yojaka ) [17] in a manner that the fire is always at the right side of the couple. In certain parts of India, this rite is also known as Sat-phera (sAta-pherA) meaning taking seven revolutions around the Homa fire. Both are accepted customs and mean the same thing. While taking the seventh step (or phera) the groom tells his bride, "From now, you be my friend, be loyal to me (my objectives), let us have children who would live healthy and have long life."

All rites performed prior to the seventh step (or revolution) could be cancelled voluntarily by either the bride or the groom who could request the presiding priest to stop, postpone or altogether cancel the marriage or if the presiding priest suspected force, coercion or any other element denounced by the scriptures (such as financial transaction) either from the body language of the couple (Manu: sobbing of bride) or through any other source/s he could suo-moto declare all rites performed prior to the seventh step (or phera) as null and void and could cancel the marriage. Such a cancellation of marriage by the presiding priest was then socially acceptable and the woman returned to her father's house without any social stigma.

However, after the seventh step, the writ of the presiding priest ended and the Hindu marriage could not be revoked at the will of anybody except by the writ of the Crown who too was constrained to act according to the prevalent customs, legal tenets and needed to have sought opinion of his ministers or a committee of scholars (usually referred as parishada). In short, dissolution of Hindu marriage in the ancient times was an extremely difficult proposition though not always impossible.

In the modern India though the custom of saptapadi (or Satphera) is meticulously followed and also been given as much importance as in the olden times, the legal right and crown's protection granted to presiding priest does not exist any more. The institution called "Hindu Priests" too does not exist, in its noble form, during the current times. Modern priest has been reduced to being a ‘local pundit' who chants mantras at any religious ceremony. Role of priest as Crown's representative and as a principal witness in legal trial before the court has been obliterated in the modern times. The cause for this could be in the fall of Hindu dynasties by 11th Century AD when the Priests sans the Crown's patronage were left to fend for themselves. This perhaps led to commercialisation and eventual denigration and the fall of this institution. Medieval times, lamentably saw rise of priestdom - group of people who struggled to keep the stranglehold over the society by using dubious methods ultimately bringing the entire profession in disrepute.

[VIII] Dissolution of Hindu marriage - Divorce:

As indicated above after taking the seventh step, the dissolution of marriage was an extremely difficult task. This is the reason authors of various treatises are found spending a lot of their energy in discussing and counselling on various methods of choosing a bride/bridegroom. Methods that range from various ways of collecting information about bride/bridegroom to astrological algorithms (called matching of Horoscopes etc) have been discussed at length in most treatises. The idea behind composing so many verses (shloka) on the subject was to ensure that the marital alliance, once entered into, should be irrevocable and separation, as many treatises desired, being possible only by death.

Hindu marriage is a ‘Sanskara' (as defined above). "Fire (agni) converts butter (when boiled) into clarified butter (or Ghee) and the thereafter it cannot be re-converted into butter". This was the argument on which most scholars of the bygone relied to claim that the Agni-Sanskara of marriage that involved mind, body and spirit couldn't be reversed once the rite of saptapadi is completed. Scriptures argued that since enough time is available for the couple, their guardians, relatives and kinsmen to decide and choose prior to entering into this bond, the provision for divorce is not desirable. Despite all this, if problems were to develop in the marriage then following the norms of behaviour recommended in the scriptures, they argued, would eventually settle the matters. Some of the treatises that allowed dissolution, as a last resort, were not clear about the circumstances under which divorce could be made possible.

Even as I was writing this article The Supreme Court of India lamented that Hindu Marriages act (1955; amended till 2003) quote "has broken more homes than uniting." The learned justices also went ahead to add sarcastically that anticipatory divorce petitions are being filed at the time of the marriage (!) ..... and, it is ultimately the children especially the girl child who suffers [18]. Unquote.

The State-of-affairs, clearly indicate that we need to apply our minds and take a fresh look at the legislation/s governing Hindu marriage and families.

[VIII-A] Kautilya (kauMtilya) on divorce :

Kautilya alias Arya Chanakya alias Arya Vishnugupt author of the famous treatise on governance, "Arthashastra" (approx 300 BC), brought in a paradigm shift in the civil jurisprudence by saying: "vivAhapUrvo vyavahAraH |" [19] - Marriage precedes all civil disputes. It was Kautilya who brought in the concept of divorce and dealt with it like no other lawmaker before him. True, clarified butter (Ghee) cannot be converted to butter; but, a particular bowl of Ghee can be declared by the writ of the crown to be unfit for consumption. Kautilya understood that under certain circumstances marriage may become a bondage from which exit should be possible. While upholding the sanctity of marriage as a Sanskara and without allowing it to degenerate into a mere civil contract Kautilya introduced a concept of "liberation due to mutual enmity or parasparandveShaan mokShaH" [20].

Kautilya while holding that the divorce was not possible if any of the partners in marriage did not give the consent for it, he allowed the king to dissolve the marriage if there was personal enmity between the partners. While making mutual enmity mandatory for the divorce Kautilya allowed women to seek freedom from marriage in the following circumstances [21] (i) Man is of a bad character (or is convicted), (ii) He has long gone abroad (this is irrelevant today), (iii) Likely to endanger the life of a wife, (iv) Turned traitor to the King (v) Lost virility (on the last one recent judgement was given by SC of India - Ref [22])

[IX] Note on Kautilya:

Kautilya accepts the three Vedas (Rigveda, Yajurveda & Samveda) as a major constitutional framework. Like every other smriti writer he too is not found counselling the Crown of any act that does not have the sanction of the Vedas. However, unlike most smriti writers who seem to write "procedure codes" &/or "penal codes" within the Vedic parameters; Kautilya's writing is much like the modern constitutional tenets. "Arthashastra" of Kautilya, therefore, should be looked upon and interpreted as a constitutional sub-frame within the major Vedic framework.

Author's note: The subject of Marriage and concerned jurisprudence is vast. Considering the fact that attention span of the modern individual is short I decided to split the article in parts. In the next part, I shall deal with property of women, succession, inheritance and Kautilya's tenets on property of women post divorce. I shall also inquire into position on domestic violence and rape.

 

Part II of the paper can be read at here

Note: All Sanskrit verses and the words written in (italics) are in Itrans 5.2 notation which is an extension of "Harvard-Kyoto" scheme for Romanised Sanskrit. The words can be automatically converted to Devnagari script (Font Sanskrit 2003) by using Itranslator 2003 developed by Onkaranada Ashram Himalayas and is available as freeware at http://www.omkarananda-ashram.org/Sanskrit/Itranslt.html

 

© 2008 Surin Usgaonkar

Researched and written by Surin Usgaonkar, any unauthorised publication is prohibited. If the text, or a part of it is quoted in any work for scholarly/research purposes, due credit must be given to the author in accordance with established academic norms.

References:

[1] Mahabharata - English translation by Kisari Mohan Ganguli; Adiparva(Vol I) Sec CXXII © 1896

[2]History of Dharmashastra by Bharatratna Dr P V Kane (c) BORI Pune Vol II part I

[3] Shatapath Brahman. V. 2.1. 10

[4]This is the general consensus today. However, there are arguments that Mahabharata happened much before this date and is as antiquated as 5063 BC (see Dr. Vartak et al "Scientific dating of Mahabharata War") and there are arguments that it was not before 1400 BC (see S. Radhakrishnan - Indian Philosophy)

[5] Manusmriti Translation by George Bühler 1886 Oxford University, II.215

[6] ibid III verses 55, 56.

[7] Resulting out of Vishakha v. State of Rajasthan, SC, 1997

[8] Those interested in academic differences in Manu's classification can refer to Manusmriti Translation by George Bühler Ch III verse 21 onwards

[9] Mahabharata Original (Sanskrit) Pune Electronic Edition (2001) Anushasana Parva 13-44-009

[10] See Kane et al; History of Dharmashastra Vol II part I

[11] It is important to note that what Manu calls ‘Shudra' has nothing to do with what modern Indian constitution classifies as Scheduled caste/tribes and/or Backward Castes (BC). There is no unanimity amongst Indologists about the meaning of the word ‘Shudra'. When Aryan Invasion Theory (AIT) was in vogue it was believed by some (Dr S. Radhakrishnan et al) that Shudras constituted POWs and while they were assimilated within the society they were denied certain rights. It appears that in near future AIT may become obsolete.

[12]Rg. X- 85, 26,27 and 46; Rg. I-124-7, Rg. II-17-7 as few examples.

[13] Translation by George Buhler © 1896

[14] I am indebted to Jnanapith awardee Mr. V. S. Khandekar and his varied writings that facilitated me to achieve this percept.

[15] See also "History of Dharmashastra" by Bharatratna Dr P V Kane (c) BORI Pune

[16] Monier Williams Sanskrit Dictionary Digitised version 2001

[17] The fire invoked in Homa during marriage is called ‘yojaka' meaning an arranger, preparer, contriver or effecter

[18] Learned Judges J. Dr A Passayat & G R Singvi as reported in the Times Of India dated 18th June 2008

[19] Arthashastra (Sanskrit) Critical Ed Univ. of Bombay © Kangle 1969 Book III Ch II Verse 1. Prior to Kautilya, Manu believed that it was debt; Bhargava said it was the house building and according to Bruhaspati it was the investment that caused most civil disputes. (also ref: Dr R. Shamasastry, Kautilya's Arthashastra (English) 9th Ed 1988 pp 174 etc)

[20] Arthashastra (Sanskrit) Critical Ed. Univ. of Bombay © Kangle 1969; Book III, Ch III V. 16

[21] Refer Kautilya's Arthashastra (English) Dr. R Shamasastry 9th Ed. 1988 pp 176-77 etc.

[22] Ref: Judgment arising out of Appeal Civil 1687 of 2006 Saxena v. Pandit, SC 2006