[I] Introductory Remarks Considering the comments and reactions which I received from various readers here, as well as by others on my email for the Part I of this paper, I think it is necessary that a few concepts deserve to be commented at the outset. It is significant at this stage to understand that ‘Vedas contain within themselves the basics of Achara (Unfortunately translated as religion – for a want of better English word), Vyavahara (civil and criminal law), Prayashcitta (Punishment for offences) and Darshana (philosophy of evolution). Modern individual, trained in the western form of learning, is adept to reading a book or a treatise where the subject matter is decided first and the whole book is written as a continuous flow of thoughts on a particular subject. Our difficulty with the Vedas (as also with the upanisheds) arises because we are not accustomed to imbibe knowledge from a treatise which is written as a set of random thoughts on everything that exists. We are confused when a verse on philosophy is suddenly followed by a verse on law or a comment on conduct of the king followed again by an astronomical observation. It is said that Maharishi Vyasa (also the composer of Mahabharata) was responsible for re-arranging this body of knowledge into four distinct Vedas and further dividing each into Chapters. He received his title Vyasa for doing this. vi = to recast and as = to throw or scatter; therefore, vi+as = Vyasa. Despite this, what Vyasa did was in accordance with the practice followed in the classical Sanskrit literature and the format is still nowhere near to western format that we are accustomed to. The philosophy of evolution and existence has been given a different and separate treatment by various philosophers giving rise to six different schools of philosophies known as Sankhya (by Kapila), Yoga Shastra (believed to be by Hiranyagarbha- elucidated by Patanjali), Nyaya (by Vasishtha), Vaishashikha (by Kanada), Purva-Mimansa (by Jaimini) and Uttar Mimansa  also known as Vedanta - ( by Vyasa). Most smriti /sutra writers and commentators nevertheless seem to follow the classical Sanskrit format and their writings too are found to express random thoughts on Religion, Law and Punishments. The outstanding departure from this customary style of writing appears in Yajnavalkya Smriti (contemporary or earlier to Arthashastra approx 300-200 BC) where the author seems to divide his treatise in three clear parts viz. Religion, Law and Punishment/s [1].

[II] What is meant by Vedic sanction? The purpose of discussion in the paragraph [I] above was to explain the meaning and concept of what is meant when a commentator or a critic says that a certain tenet in the smriti or sutra has (or does not have) Vedic sanction. Due to the confusion that prevails in our mind owing to above reasons many seem to think that the phrase This has the sanction of Vedas is synonymous to saying, This is an authentic Hindu religious custom. Some take it even further. Since it is metaphorically said that the Vedas is a word of God they seem to think that Vedic sanction means The God said so or, the God approves this. These are unfortunate misgivings. The relationship between the Vedas and various smriti writers or those who laid the rules for the society can be expressed in the modern terms as a relationship between the Constitution of a country and the operative aspects of the Law. For example, in the current Indian context, the provisions of obtaining ‘bail’ exist in the Criminal Procedure Code because the Indian constitution adopted in 1950 places extraordinary premium on the liberty and freedom of an Indian citizen. In short, the Sec of Cr.P.C. which deals with granting a bail to the accused has a Constitutional sanction. In fact everything that exists in Criminal Procedure Code, Civil Procedure Code or the Indian Penal Code has an Indian constitutional tenet backing it. Therefore, huge literature commenting on sutras or Smritis are found to argue whether a particular tenet has (or does not have) Vedic sanction. It is much the same way like arguments in modern courts whether a particular law in a given situation is constitutionally valid or not.

[III] Vedic position on marriage (Laying the Foundation of Jurisprudence):With the above discussion it is clear that there must be a Vedic tenet which directly or indirectly indicates and/or sanctions the crown to make rules and regulations about marriage. Rig-Veda expresses a seemingly simple but by far the deepest thought on the institution of marriage that I have come to read. Rig-Veda X-85-34 reads as: tR^iSTametatkaTukametadapaaShThavadviShavan naitadattave |sUryaaM yo brahmaa vidyaata sedvaadhUyamarhati ||
[Pungent is this, and bitter this, filled, as it were, with arrow barbs, empoisoned and not fit for use. The brahman who knows surya well deserves the garment of bride.] [2] The poetical translation needs some explanation. The first part of the verse metaphorically but accurately informs us that marriage is a synthetic norm, not only that it does not come naturally to humans but is a difficult path to follow. The second part of the verse (R^ichaa) tells us to understand the truth behind the (glory and splendour of) the Sun. It is a common knowledge that Rig-Veda (at varied places) has hardly spared an adjective in Sanskrit language to sing odes to the Sun making him the most revered entity. He (the Sun) is the all powerful, the source of energy, creator of light and the most important cause and supporter of life on the planet. What makes him to ascend to that exalted position? He does so, because and only because (logic: If and only if) every time he sinks he promises to rise and keeps his word. Should he fail to do that even once, all the life on this planet shall come to an end. This is what is called in Sanskrit as being akhaNDa vratastha – following the norms laid down without fail not because it makes any difference to one who follows them but because following them is necessary (note : it makes no difference to the Sun if the life on this planet come to an end)[3]. Like many Vedic verses this too is a extremely well cut diamond [4] – as you change the direction of looking, different colours shall manifest. Nevertheless, in our discussion here, the verse underscores the importance and sanctions laying down the rules for man-woman relationship. In other words it lays the foundation of jurisprudence of marriage.

[IV] Definition of Marriage – vivAha

(i) In my opinion, some more time was needed to have been spent by the Indologists in the late twentieth century on trying to understand the meaning of the Sanskrit word ‘vivaha’ (vivAha). The word is a compound word formed out of two Sanskrit words: ‘vi’ which used as a prefix to noun in traditional Sanskrit for variety of reasons and, ‘vaha’ (vAha) is a noun meaning: bearing, drawing, conveying, carrying [5]. It was automatically concluded that vivAha is a process where a bride is carried away by bridegroom for a special purpose [6]. The meaning of word vivAha used in Taittariya Samhita (VII-2-87) was thus assumed to be settled.

(ii) On my part I shall like to probe deeper into the meaning of this word without disturbing the basic etymological meanings of either parts which form the word. I choose to prefer the meaning of ‘vAha’ as a masculine noun meaning Vehicle and ‘vi’ to mean through [7]. Therefore the word vivAha, in my opinion, means a vehicle to go through. It is a vehicle to go from the primal desire to friendship, from friendship to love, from love to faith and finally from faith to sacrifice. Hence, this time etymologically, I re-arrive at the definition of ‘Vivaha’ that I proposed in the paragraph [VI] of the part I of this paper. [8]

(iii) In reaching the above conclusion for the meaning of the word I also rely on the various rites and customs during Hindu wedding. I notice from the survey of literature [9] that the traditional wedding rites begin with parasparasamikShaNa (looking at each other) and pANigrahaNa (holding each others hand) – both indicating physical attraction and love and the end by a rite called dhR^ivaarundhatI-darshana – joint observation of North-star and a star of ‘arundhatI’ (rarely seen star Alcor in Big Bear constellation). The Dhruva (North Star) in the Sanskrit literature is a common metaphor for steadfastness achieved through faith [10] and ‘Arundhati’ has been called as a wife of dharma – a symbol of sanctity. This needs no further elaboration. In short, my conclusion in the sub paragraph (ii) above seems to receive substantial support from the customs elucidated in sub-paragraph (iii) above. I, therefore, rest my case.

[V] Stand on: Sex between consenting adults, Pre-marital sex:

Who, why and when put the word sex in the closet in a society that celebrated it, is a riddle in Indology which remains to be solved. However, by the time the British touched the shores of India in the 17^th Century AD, the Indian society seemed to have made sex a social taboo. Had the Vedic jurisprudence were to base itself on the suppression of human feelings and primal desires instead of deep understanding of the human behaviour it could not have stood the test of time for more than five millenniums.

(i) The Vedas, as illustrated in the paragraph [II] above, sanction the smriti /sutra writers to frame the rules for the marriage but, there is no law that states that a man or a woman must get married. On the contrary, as we saw in the part I on the paper that Manu (Ch IX v. 89 reproduced in ref. below) [11] proposes ‘spinsterhood’ as a dignified solution should a woman not find a suitable match. Does this counsel to a woman mean that she should practice abstinence for rest of her life? If the answer to the above question is in affirmative, then the above counsel is not a counsel but a punishment. If it is a punishment, then the only way to escape this punishment is to get married, this would be inherently a self-contradictory statement – a paradox. Manu is quick in removing the paradox as he says in the same chapter Ch IX, v 91 If, being not given in marriage, she herself seeks a husband, she incurs no guilt, nor (does) he whom she weds (subsequently). Here, sexual relationship with another un-married man (adultery being a punishable offence) is presumed, subsequent marriage is anticipated; but, ‘guilt’ is done away with as a prudent law maker sensitive to human behaviour should. Manu Ch III v. 32 again refers to pre-marital sex as a Gandharva[12] custom and therefore as a corollary to his own tenet in Ch XIII, 41[13] he advises the King to formulate laws accommodating it. Manu, as I said, being trapped in his predicament (ref: Part I of the paper) could not have been more liberal but a highly respectable figure during Vedic time, Sage Atri (197-198), is liberal enough to say that even if woman gets pregnant she should be considered impure only till delivery, and the child born out of such relation may be handed over to some one else for raising. Sage Deval is of no different opinion and Vyasa in Mahabharata (13. 267.38) [14] exonerates women, by and large, of guilt of consensual or pre-marital sex. In sum, the principle distils out to be as under: Neither the sex between unmarried consenting adults was denounced, nor the pre-marital sexual relationship. What was undesired (and forbidden) was having multiple sexual partners without social responsibility and, of course, infidelity and adultery. [Note: I have predominantly used references from Manusmriti here because Manu is supposed to be harshest amongst the smriti writers on this subject. In fact those who think that Manu subverted women especially in the Ch IX of his smriti must go through the AD 1884 Marriage act passed by the British which reduced women to be mere slaves of the husbands] [15]

(ii) Story of Kunti:  At this point story of Kunti in Mahabharata requires a special mention which further clarifies the intended position of the women in the society – an important dimension of jurisprudence of marriage. Those who are familiar with the plot of Mahabharata (most Indians are) know that Kunti was the mother of Pandava brothers who with the blessings and help of Lord Krishna (the chief protagonist) ultimately won the famous war. Vyasa (the composer of Mahabharata) tells us that Kunti has a child before her marriage, she abandons him fearing social ire, hides the fact from her husband and goes through her life paying the price (mental trauma) for the deed. The abandoned son, ‘Karana’ (Sanskrit: KarNa) rises through his own prowess to become one of the highly respected characters despite the fact that he is ultimately slain in the battle. He is still revered across the peninsular India with many children being named as Karan. Through the epic Vyasa tells us: This happens and the way Kunti handled it is not the way to handle it. Importantly, throughout the epic, Kunti is treated with respect and reverence as an AryA, the word in Sanskrit means a respectable and honourable woman. The essence of this (called in Sanskrit as dR^iShTAnta) is extremely important: Throughout the last millennium (at least) the society is conditioned to define character of a woman only on the basis of her sexual behaviour. One mistake and a lady becomes not worthy of respect. The society at the time of Mahabharata, as seen through this episode, was far more mature for such a didactic vulgarity. It appears from here that it considered woman’s life as a whole before passing any judgement on her. Lamentably, even the modern Western world is found seriously wanting in this area.

[VI] Dissolution of Hindu Marriage

(i) As I pointed out in the part I of the paper, prior to Kautilya’s Arthashastra dissolution of Hindu marriage was extremely difficult proposition – perhaps impossible. At least from the Vedic period till 300 BC (which may account for more than three millenniums) the Indic civilisation lived with a concept that marriage was an irrevocable arrangement and once saptapadi or the seventh steps (or revolutions) before homa-fire is completed the separation was possible only by death. All the Smriti /sutra writers and commentators whether Manu, Vasishtha, Narada, Aparka, Vyasa in Mahabharata (Anushasana Parva) or even Yajnavalkya (I.65) are unanimous on this. Their arguments are based on the fact that since it is the woman who brings forth the progeny and carries forward the human races (saves it from extinction); she should be either under the protection of her father or under the protection of her husband (since the father grows old). Having given woman the due freedom to choose and pick prior to marriage, having asked woman to be under the protection of her husband, having asked her to be loyal to her husband, is it fair that a man should be allowed to, at his own fancy and caprice supersede her wife-hood with another woman? The unanimous answer, according to them, was a resounding NO. In fact one of the commentator of Yajnavalkya [16] goes a step further and says even if the woman is proved to be adulterous after marriage but is willing and goes through the punishment for the adultery (through self penance) her wife-hood remains intact. [Wife-hood, among other things, included her right over the husband’s property]. Ancient literature is full of various arguments on the subject in several treatises written at different points of time. All seem to be against the dissolution of marriage ending with the principle that either partners have the power to rescind whatever has happened till the seventh step (or revolution) is taken before the Homa – fire without any legal, moral or social consequences, also, there is no compulsion to complete the seventh step immediately after the sixth, time can be sought from the presiding priest before the couple takes the seventh step hence what modern jurisprudence calls locus paenitentiae is available. Therefore, dissolution cannot be allowed and any attempt to subvert the wife-hood should be punishable with harshest punishments awarded to the husband and his kinsmen.

(ii) Having said this much a problem still arose if the man after the saptapadi had to state that he has been married to a woman by trick, cheating, fraud or by concealing any important information about the bride. Should such a marriage be then allowed to be dissolved placing reliance on Manu’s primary tenet Ch. VIII 168 (also 165) which says: What is been given by force, what is taken by force, what is enjoyed by force and all transactions done by force are null and void. The formulators of civil rules of ancient India seem to have gone as far as to say that Vivaha stands an exception to this tenet though the Manu’s above tenet may have full Vedic sanction.

[VII] Kauntilya allows Dissolution of Hindu Marriage (~ 300 BC):

From the discussion in paragraph [VI] (i) and (ii) above one can easily understand the vehemence and a strength of opposition to ‘divorce’ when Kauntilya scripted (and successfully argued) the Arthashastra. Kauntilya, in face of all these arguments brings forth a paradigm shift in the jurisprudence by declaring at the outset of Book III chapter II stating that the institution of Marriage is the mother of all civil disputes [17] and then begins to script his tenets regarding it. At his diplomatic best he confronts no smriti writers, accepts and applauds the Vedic wisdom states that ordinarily a marriage taken place in accordance with the orthodox customs cannot be dissolved. However, by time he ends writing Chapter III of Book III he subtly introduces the concept of enmity between husband and wife. It is a carefully chosen word parasparadvesha meaning mutual enmity. From enmity results cruelty and it is a prime duty of the king to insure that every institution under the jurisdiction practices complete abstinence from cruelty [18]. Wading through the coppice of the high arguments set by the Smriti /sutra writers, summarised in the paragraph [VI] (i) and (ii) above, Kauntilya manages to keep his finger on the right spot. He recognises that despite the solid arguments put forth, there can be cases where marriage can become a bondage from which liberation should be made possible. He, therefore, takes the stand, mutual consent (from both partners) is necessary but not a sufficient condition for dissolution; but, prove the mutual enmity beyond the shadow of doubt and I shall grant you the freedom from marriage (mokSha) on my terms. Here, he makes clear that there has to be mutual enmity and not mere hatred of one against another. He distinguishes that hatred can be one sided (husband hating the wife or vice versa). The condition is clearly mutual enmity Kauntilya is perhaps the first writers who speak of both genders with equality (on the subject of marriage) but again subtly sides women by saying that a woman may seek freedom from marriage on the following counts even if there is no personal enmity. (a) If the husband is convicted (b) Has long gone abroad without trace (c) turned traitor to the King, (d) is likely to endanger life of a woman or (e) has lost his virility.

[VIII] Dealing with alimony:

(i) Interestingly the concept was recognised in a much better perspective than the modern days by Kautilya. Kautilya says: (a)that the Woman has a right to claim maintenance from her husband (whom she has given permission to marry someone else) for an unlimited period and as much of a food and clothing that is needed; in case the husband is capable of providing for more it shall be more and regardless of the needs of the woman concerned, the alimony shall be proportionate to the income of the maintainer (the divorced husband) (b) In addition, she should be provided with property and compensation as a fee (shukla) for granting permission for her husband to re-marry.[19]

(ii) Forfeiture of alimony: This right (according to Kautilya) is forfeited (by a woman) only on two counts (a) If a woman places herself in the care of anyone who is in her father-in-laws family (note: not her father’s family the word used here is:shvashura-kula-praviSTaayaam) or (b) When she begins to live independently

[IX]Dealing with domestic violence This is another significant departure from the smriti /sutra writers prior to Kautilya (or perhaps even his contemporaries). Narada forbids husband and/or wife to complain to the king about the matters of relation between them[20] Yajnavalkya who preceded Kauntilya holds similar view saying that husband and wife cannot stand as a plaintiff and defendant (or vice versa) in connection of their marital relationship in the court of the King.[21] Even modern legislation fails to clearly define domestic violence. Kautilya is crystal clear. Three strokes by a hollow bamboo, rope or the palm of the hand by either partner shall be tolerated as act of discipline, fit of anger or jealousy. Anything more and either partners have the right to lodge a complaint and punishment to the accused shall be half the punishment ascertained for criminal hurt and defamation. It is notable that Kautilya does not assume that violence can be only from the males.

[X] Dealing with rape – outstanding concepts:Rape has been defined as one of the most heinous offences and most law-makers have said that the rapist be treated as an enemy of the society and should be neutralised. At varied different points of history different dynasties have awarded different punishments ranging from castration to death (with or without torture) in order to provide sufficient deterrent to rapist. However, is punishing the rapist, howsoever harsh the punishment may be, sufficient and complete justice? The question was raised by Deval by saying “do we have a right to make the life of a woman more miserable than the memory and the scars on her mind that are left behind by such a horrible mishap?, indicating that rehabilitation of a woman into society immediately after rape is as important as punishment to the rapist. Here, Vasishtha (17.73) too is clear:

balaaccetprahR^itaakanyaa mantrairyadi na saMskR^itaa |

anyasmai vidhivadyeyaa yathaa kanyaa tathaiva saa ||va. 17.73

[Rape does not take away sanctity of a woman and such a woman is perfectly eligible for marriage as a virgin (and should be treated as one)This puts the onus of rehabilitation of woman who has been a victim of rape on the establishment including the Society and the Crown.

One more question arises, which is: If the rapist offers to marry his victim, should such an alliance be accepted? Kautilya has the answer - audacity and terseness laudable - as usual:

“sarveSaaM prItyaaropaNam apratiSiddham | iti vivaaha dharmaH”

[Crown should have no objection in accepting any marriage if all parties concerned in the marriage are happy] [22]

[XI] Abortion I think this discussion shall be incomplete unless some comments are made on abortion. Unfortunately, the word in the ancient literature seems to have been confused with infanticide. Infanticide refers to termination of life of a exposed child (child exposed to light) . There is no ambiguity at all about infanticide – it is treated on par with homicide and most scriptures are found to advocate capital punishment for the crime. However,in connection with abortions one Vedic hymn stands out . Rigveda 2.29.1 reads as : dhR^itavrataa aadityaa iSiraa aare matkarta rahasUrivaagaH | shR^iNvato vo varuNa mitra devaa bhadrasya vidvaa.N avase huve vaH|| [Upholders of law, ye strong Adityaa, remove my sins like her who bears in secret. You, Varuna, Mitra, and all Gods who listen, I call to help me, I who know your goodness]

(i)Undoubtedly the Rishi is seen here praying that his sins be washed like her who bears in secret. Serious applications of rules of Jaimini’s purva-mimansa would be required to truly interpret the verse and separate the directive principle from metaphors. I have not yet undertaken such an exercise. However, it strikes me as important that a Rishi should choose this example among several others that he could have. Survey of the literature revealed that Sayanacharya in Vedartha-Prakasha (13^th Century) indicates that the word rahisU = to cast off in secret, means abortion. (I do not have an authentic documentary evidence of Sayana’s analysis)

(ii)There were two Sanskaras performed (still in vogue in some parts of India though not popular) by a couple post marriage. First, was garabhadan (garbhAdhAna) which was performed when the couple decided to start a family. The rites involved seeking blessings of the Almighty for conception. Another was performed in the fourth month of pregnancy called grabharakShan (garbharaxaNa synonym anavalobhana) the rites performed sought the almighty’s protection for the unborn life. If tenets of Sankhya philosophy are considered then life is said to have begun the moment an entity acquires the ability to individualise the experience of the universe. Prior to this point in time, a foetus is a mere extension of woman’s body much like a tumour. Since, garbharakshana was prescribed to be performed in the fourth month of pregnancy it appears that it was held during ancient times that life started in that period or soon after that. Even the modern medicine does not have methods for exact and accurate prediction as to when does an entity begins to individualise experiences. It is also true that prior to beginning of life, termination of foetus could not been held as an offence!

(iii) “Unless a woman acquires complete right to decide on the pregnancy any talk of empowerment of women would be shallow”, these were the words of Raghunath Dhondo Karve son of famous Maharshi Karve and the words had impressed Dr. Babasaheb Ambedkar who drafted the modern Indian constitution. It is increasingly becoming clear that Medical termination of Pregnancy act 1971 of India requires an overhaul. I leave it to the readers who, I am sure, are capable of dealing with esoteric abstractions to draw their conclusions.

The subject of jurisprudence of marriage and topics related to it is vast and complex. I have tried to summarise some ideas in order to provide an impetus to the thinking modern man. I pray to the goddess of knowledge, Shri Sharada, to give me inspiration to complete the trilogy of this paper and take your leave  

© Surin Usgaonkar, Mumbai 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.  

Notes 1.      All translations of Rigveda are Ralph T H Griffith © 18962.     

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  

References:

[1]Lecture by learned Justice Markandey Katju Supreme Court (India) Ref: (2005) 7 SCC (J) 3

[2]Poetical translation by Ralph T H Griffith 1896

[3]The word vratastha comes from vrata which is derived from the Sanskrit verb root vR^I (chosen by self). The summary of entire debate on the etymology of this word is found in History of Dharmashastra by Bharatratna Dr. PV Kane Vol V , Part II

[4]For the advanced readers it is worthwhile to mention that while the principle composition of Rigveda X-85 is in anuSTup and gAyatri, this particular verse stands out with a rare poetical composition called urobR^ihatI .

[5]Monier Williams Sanskrit Dictionary Digital version 2001

[6]Kane et al , History of Dharmashastra by Bharatratna Dr. PV Kane Vol. II part I

[7]Monier Williams Sanskrit Dictionary Advanced Version (used in Mahabharata and Shvetesvar up.)

[8]See Jurisprudence of Hindu Marriage – Part I [Concepts] at Medha Journal.

[9]Particularly Baudhayana-gruhya-sutra, Apastambha-gruhya-sutra, Paraskara-gruhya-sutra andc

[10]Mythological story of Dhruva the child and his worship of Vishnu is a part of common folklore in India and is widely available on the Internet.

[11] Manu Ch IX v 89 reads as: (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.

[12]A lot is been said about the meaning of Gandharva However, it shall not be wrong to consider them as a educated and respected class or tribe during the Vedic period. The science of music is attributed to Gandharva tribe vide Mahabharata which uses gandharva-vidyaa as a synonym for music.

[13]ref: in the paragraph [IV-A] of first part of this paper

[14] Original Calcutta edition. Reference in Pune edition may differ

[15]Comparison by noted indologist and Jurist Dr P V Kane in History of Dharmashastra

[16]Vishvarupan on Yaj. Smri.

[17] viVahapUrvo vyavahAraH  Arth. III-02-1

[18] Arthashastra I-3-13 read with I-3-16, Mumbai Univ. Critical Ed. 1969 © Dr Kangle

[19] Vide translation Kautilya’s Arthashastra , Dr R Shamasastry © 1915

[20] narada stripuMsa V. 89

[21] Evolution of Kautilya’s Arthashastra (inscriptional approach) by S C Mishra © 1997 [22]Arthashastra Book Iii Ch II V 13 Critical Ed Mumbai univ. © Dr Kangle 1969

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written by karigar, 2010-06-13 08:12:15

Dear Surin,

Enjoyed reading your scholarly paper, Thanks

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lasting value
written by partha, 2010-03-10 18:53:49

Dear SU,
The contribution to jurisprudence in India on this subject thanks to your work prepared at the request of men in higher legal echelons will indeed have lasting value and will confer enduring benefits to our society.
Please do not use the Dr epithet to address me. No one does.
Thanks once again.
Warm regards. Partha.

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Dr Partha
written by usgaonkar, 2010-03-09 21:40:19

Dear Dr Partha :

No, I have not up-dated the paper, I have only edited it. Since the publication of these two papers on jurisprudence of Hindu marriage (Part I and II), I have been receiving many requests for permission to reproduce these papers or parts of them in various publications. Some of the requests were from the highest echelons of the legal fraternity in India. It was also pointed out to me that there are typographical as well as a few grammatical errors which have crept in due to oversight. These needed corrections which have been done.

I was glad to read a report in TOI (March 7, 2010), that the learned Chief Justice of India has initiated a debate amongst intellectuals for “Respecting the wish of a rape victim to marry the rapist and keep his child”; he has also suggested that a national corpus may be created to rehabilitate the victims of rape. Incidentally, I had pointed out these jurisprudential concepts which were elucidated by the scholars of bygone era like sage Atri, Sage Deval and Kautilya in this paper two years ago. Even if a national debate starts on these concepts I would be happy that my efforts in writing the above papers have been effectual.

Regards.

Surin

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Thank you
written by partha, 2010-03-08 18:53:31

Thanks for updating Part 2, dear SU, as it gave me an opportunity go through both the parts and enjoy the scholarshp, the deep research, which had gone into both, once again.
Any subtle change you may have made during the update is lost on me. Would you like to clarify?
Am also hoping that you have since been able to find out when exactly mangalsutra pactice started.
If it was inspired by the need to indicate 'hands off!', it would have indeed been ineffective against unscrupuous marauders. Perhaps it reflects a period when the rakshasa vivaha aspirants would be turned off by the presence of an evidence of the married state.
As to Shaunaka smriti being vedic, 1) there could have been a later Shaunaka, or 2) the smriti could have been updated, before the copy you mention was made.
Sincere regards. Partha.

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Mangalsutra
written by Surin Usgaonkar, 2008-08-09 01:24:54

All three prominent schools of Modern Indology (viz. German, Euro-Asian and Indian) are in complete agreement that there are NO reference to 'Mangalsutra' in Vedas, Smrities and/or sutras. Kautilya as well as Vatsayana (Kama-sutra) seem to be unaware of this special ornament. The earliest reference (Sanskrit: mA~gglyasUtram) is found in Shaunaka-smriti. Though Shaunaka smriti, as the name suggests, should be of the Vedic times the only manuscript available in Library of University of Mumbai–(folio 39b)is Carbon dated to be around 1000 AD. It does mention Mangalsutra though it does not describe the structure of it in detail except saying that it should be made of beads (maNi). The only other reference is found (according to Dr. Kane et al and Dr. Altekar et al) is in Laghu-Ashvalayan-smriti (15.33) However, in this smriti it is indicated that such a ‘Mangalsutra’ was to be tied to a tree outside the house where marriage was underway.

There is no unanimity about when and where this custom started. However, vivid descriptions of the funeral rites conducted on Maratha warriors in the third battle of Panipat (AD 1761) clearly states that custom was widely prevalent then.

If I get any further information on the matter I shall mention it here.

Hope that this helps

Regards

Surin

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The Mangal Sutra
written by narensomu, 2008-08-08 22:51:00

Dear Partha
I am intrigued by the discussions here, especially the one about the mangal sutra or thali as it is called in the South.
You might be able to say whether there are any Sangam references to the thali-Does Silambu mention anything about the custom?
Soundaryalahari does a Padhadikesa description and talks about the ear rings Devi wears as a sumangali but I think there is no mention of a mangal sutra.
Was that a Southern custom that was later adopted all over?
Now it is such a prevalent practice, even our Devi murthis wear it.
btw, in a lighter vein, tiger claws couldn't have hurt anyone's credit cards!

Shri Rao
Thank you for an informative "sub blog "on the subject .
Were the lines of King Janaka [ Iyam Seetha...] -used in wedding ceremonies a later addition?
Regards
ns

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dispute-breaker
written by P. Desikan, 2008-08-08 14:53:54

Yes, dear Rajendra,
The comprehensive navya smriti treatise in Sanskrit composed by Jagannath Panchanan seems to have had the significant name vivaada bhangaarnava, an ocean of techniques to end or break disputes! Colebrook is believed to have translated large portions of it into a digest that came to be known by his name. Your list of Acts which had been inspired by this effort is truly impressive. Thank you.
Regards. Partha.

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Great
written by Raju, 2008-08-08 13:03:16

Hi Surin,

Very scholarly and factual article. I always wanted to know connection between Vedas and today’s Hindu marriage law. Your article did show the milestones in the evolution of Hindu marriage law. I am hoping that your future articles will show the causes of transition of Hindu Marriage law in Indian History.

Here is what I found about connection between Sanskrit texts and Indian law during British rule.

It is said that Colenbrooke and Jayannath Tarkapanchanan translated the last of the great Sanskrit digests in year 1797. It is after this courts treated Sanskrit legal texts as statutes, before this these were considered as evidence of unwritten eternal law.
Looks like it is after this we have:
•The Hindu Windows Remarriage Act 1856
•The Child Marriage Restraint Act 1928
•The Arya Marriage Act 1930
•The Hindu Women’s Right to Property Act 1937
•The Hindu Women’s Right to Separate Residence and
Maintenance Act 1946
•Etc
(Source: An Introduction to Hindu Jurisprudence by Harrop A. Freeman)

Regards,

Rajendra Rajput

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the sutra
written by P. Desikan, 2008-08-07 14:15:48

SSR's sub-blog on part IV of SU's blog is matchingly beautiful.
He is right that the mangalasutra is a later addition.It is most probably an adaptation of a tribal practice of an eligible young man making a necklace from teeth/claws of a wild animal killed in hunting and proudly tying it around the neck of the girl of his dreams.
Regards. Partha

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Jurisprudence of Hindu marriage Part II – Probing Deeper
written by sreenivasarao s, 2008-08-07 13:16:19

ViVaha

It is a very scholarly work; and of great value.

Mr. Usgaonkar in his brilliant analysis provided a beautiful esoteric meaning to Vivaha “ It is a vehicle to go from the primal desire to friendship, from friendship to love, from love to faith and finally from faith to sacrifice.” Yes; but, there could be a practical explanation, too.

The suktha 85 of the tenth book of Rig Veda has a set of 47 riks; and is called Vivaha suktha or Surya Suktha. The reason for that is, the suktha is about the marriage of Surye (daughter of Surya) with Soma (moon). It outlines the practices prevalent in the then Vedic society.
According to that, the marriage process would commence with the groom calling on the bride’s house, making a proposal, getting its acceptance from her parents and taking the bride to his home. This process was Vivaha. The term is made of a prefix Vi which generally means explicit or through and/ or a variety of similar attributes. Vaha conveys a sense of transport or carry or movement. Vivaha, the auspicious proceeding, might be the bride’s movement or departure from her parent’s house, along with the groom.


Rik (10-85-10) describes the departure of Surye from her parent’s house; and says, “Her spirit (manas) was the bridal car; the covering thereof was heaven: Bright were both Steers that drew it when Surya approached her husband's, home.”

In Rik (10-85-20) Soma, the groom invites his bride to mount the chariot (to her home) saying, “Mount this, all-shaped, gold-hued, with strong wheels, fashioned of Kimsuka and Salmali (types of strong wood), light-rolling; bound for the world of life immortal, Surya: make for thy lord a happy bridal journey.”

The Bride’s friends and relatives assembled at her doorsteps see her off with the greeting and wishes,” Let Pusan take thy hand and hence conduct thee; may the two Asvins on their car transport thee. Go to the house to be the household's mistress (griha swamin) and conduct (as lady of the house) to thy gathered (husband’s) people.”—(10-85-26)

[Prior to this Savitar (father of the bride) arranged for transporting the bride’s wedding gifts to the groom’s house (10-85-13)]

The actual wedding, the Paani grahana – takes place at the groom’s residence in presence of his people, friends and others..

He invites the bride to his home, as she enters (before the wedding) and greets her with a wish and a message,” Happy be thou and prosper witlh thy children here: be vigilant to rule thy household in this home. ” (10-85-27)
The happy groom invites those assembled to greet the bride and return to their homes,”Come all of you and look at her; the bride, the auspicious one, the bringer of good fortune. Wish her prosperity, and then return unto your homes again.’(10-85-33).

This mantra is, now, invariably sung in all weddings: Sumangaleeryam vadhuriman sametha pashyatham..


This is followed by Paani grahana with Agni as the witness. He says, “I take thy hand in mine for happy fortunes that thou may reach old age with me thy husband. Gods, Aryaman, Bhaga, Savitar, Purandhi, have given thee to me as I may become a householder (grihapathi) “(10-85-36)


Those assembled bless the newlywed, in beautiful verses,
“Be ye not parted; dwell ye here reach the full time of human life, with sons and grandsons; sport and play, rejoicing in your own abode “(10-85-42)

“Not be harsh, not be ill wisher of thy husband; take good care of cattle; Oh...the radiant, gentle hearted one. You, Loving the Gods, delightful, bearing heroes, bring blessing and prosperity to us all and to our quadrupeds and bipeds.”(10- 85- 44)

“O Bounteous Indra, make this bride blest in her sons and fortunate. Vouchsafe to her ten sons, and make her husband the eleventh “(10-85-45).

http://en.wikisource.org/wiki/The_Rig_Veda/Mandala_10/Hymn_85

[I am not sure if there was a reference to tying mangala sutra. Even in case the bride was adorned with a necklace or a sutra, I am not sure if it carried the significance, it now has acquired. I have to ask someone who really knows.]


In the later times, Vivaha became a very important Samskara.

The father of the bride asks for a promise You shall not transgress Dharma in the attainment of Artha and Kama. The groom accepts and says : I shall not transgress Dharma, in matters of Artha and Kama. (Nathi charami ...nathi charami)

This is confirmed in the' Saptapadi ', a very important aspect of marriage, at the end of which there is a declaration that they become life long friends. Though the 'Saptapadhi' was an essential precondition for an orthodox Hindu Marriage, the spirit and purpose of 'Vivaha Samskara' in whatever manner performed was one and the same,

http://www.vhp-america.org/dyn...m_Jois.pdf

Thanks for a great article.

Regards

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Brilliant article
written by narensomu, 2008-08-06 06:07:09

Surinji
Yet another well researched, well presented article from you.
We can only imagine the amount of time and energy you must have spent in reading and analysing so many sources.
Regarding assault, the ideas presented here show what a mature society that was.
I wondered about ancient India's ideas on remarriage as well,and think the fact that Damayanti participates in a second Swayamwara [ ofcourse she does so to find Nala ]shows that the society didn't frown on that idea if there were genuine reasons.
I wish your series would become a book and open many more eyes.
Regards
ns

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openness
written by P. Desikan, 2008-08-05 10:46:51

Shri SU must be left to answer Hatimtai's questions wisely. It is tempting to venture an answer for question 2 only, in part.
Because our gates were open, inviting friends and foes alike. Some who came stayed to rule over us and taught us to close ourselves.
Regards. Partha

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santaH
written by P. Desikan, 2008-08-05 10:41:40

Shri usgaonkar will qualify to be included in the group described by the word santaH, as implied in kavi kALidAsa's opening verse in mAlavikAgnimitra.
The poet says 'santaH parIkshya anyatarat bhajante, mUDhaH parapratyaya neya buddhiH.' meaning that good, wise men decide either way only after careful scrutiny, while a fool's thinking based only on other people's opinions. ( (The subject in question was whether there was merit in any work just because of its being old.)
An absolute gem in the interpretation of ancient Indian thoughts on tenets applicable to marriage and the social relevance of some of those tenets almost for all of time!.
I salute Shri SU.
Regards. Partha.

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Excellent article!
written by Sreeparna, 2008-08-05 09:35:25

Dear Surin ji,

This is another of your excellent well researched article from your trilogy. I find it extremely captivating and interesting! The paper had an excellent flow of matter!

[Note: I have predominantly used references from Manusmriti here because Manu is supposed to be harshest amongst the smriti writers on this subject. In fact those who think that Manu subverted women especially in the Ch IX of his smriti must go through the AD 1884 Marriage act passed by the British which reduced women to be mere slaves of the husbands] [15]

1. Was this British Marriage Act AD 1884, a reflection of their society at that time? Or was was it done for a purpose?

2. If Vedic times reflected such openness in the society, why was this openness lost?

3. Do you think it was an utopian (visionary, idealistic)society?

Regards,
Hatimtai

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