Verse 9.135

Sanskrit text, Unicode transliteration and English translation by Ganganath Jha:

अपुत्रायां मृतायां तु पुत्रिकायां कथं चन ।
धनं तत् पुत्रिकाभर्ता हरेतैवाविचारयन् ॥ १३५ ॥

aputrāyāṃ mṛtāyāṃ tu putrikāyāṃ kathaṃ cana |
dhanaṃ tat putrikābhartā haretaivāvicārayan || 135 ||

If the appointed daughter happen to die without a son, the husband of that appointed daughter may, without hesitation, take that property.—(135)

 

Medhātithi’s commentary (manubhāṣya):

So far it would appear that the husband of the Appointed Daughter who has had no issue, has nothing to do with the property in question; hence the present text lays down his connection with it.

In this connection there arises the question:—“Does the Appointed Daughter become ‘sanctified’ by marriage or not? If she is sanctified, then she becomes a wife; as ‘marriage’ consists in ‘making a wife.’ And in that case her property naturally reverts to her husband (?). If, on the other hand, she is not sanctified by the marriage,—then, as she would still continue to be a maiden, her husband’s intercourse with her would he of the nature of having intercourse with an unmarried maiden, and would he a direct contravention of the rule that one should always remain attached to his own wife.”

You may take it any way you choose. (?)

“But in that case the present verse becomes meaningless.”

There is no force in this objection. In order to complete the usefulness of the verse, it should he taken as meant to set aside the notion that ‘just as the child horn of the Appointed Daughter does not belong to her husband, so would her property also not be inherited by him.’ As a matter of fact, again, there are several verses in the work of Manu that are purely declamatory.

Or, (for the sake of argument) it may be said that the Appointed Daughter is not sanctified by Marriage. Even so, intercourse with her would not mean intercourse with a maiden.—“How so?”—Because all that is meant is that the child born of her shall belong to its mother’s father; and any consideration of extraneous matters is entirely out of place (?) Then again, the act of the husband of the Appointed Daughter is not among those that make one an ‘outcaste’ (as it would, if it meant intercourse with a maiden).

Further, is the argument that ‘it moans intercourse with a maiden’ urged on the understanding that the name ‘maiden’ stands for the remarried widow? As a matter of fact, there are three kinds of ‘maidens’—(l) one who has had no sexual intercourse with a male, (2) one who has dedicated herself to lifelong service of temples, and (3) one who is still a child. Now, if the objector understands the term ‘maiden’ as standing tor one who has had no sexual intercourse, then, the first intercourse that the husband has with his married wife would also be ‘intercourse with a maiden.’ In the present treatise, the term ‘kanyā,’ ‘maiden,’ is generally used in the sense of ‘one who has had no sexual intercourse with a male.’

If the term ‘maiden’ be taken to stand for one for whom the sacraments have not been performed,—that cannot he right; as words expressive of that would he forthcoming at the very outset (?) In fact, it is only on the strength of other authorities that the term is taken figuratively as standing for the said person (?) It has been said that—‘all the sacred texts used at marriage are applicable to maidens only, and never to non-maidens, because the latter are such as have fallen off from all religious rites’ (8.226); and the mention of ‘falling off from religious rites’ is clearly indicative of the fact that the girl who has had intercourse with man is a ‘non-maiden’; and obviously, she who has not had such intercourse is a ‘maiden.’ In all these cases the ‘rites’ referred to are those that are done in accordance with the direct signification of the term ‘maiden.’ Now the question arises whether this is so in the case of all ‘rites, ‘or only in those in regard to which there are other authorities? Now, as regards the son called ‘maiden-born’ ‘Kānīna,’ the very name indicates that the girl is still under her father and is devoid of the sacramental rite (of marriage). If the name indicated only the absence of religions rites,—i e., if the name ‘maiden-horn’ applied to the child not born of lawful wed-lock,—then the son of the married woman also, begotten by men other than her husband, would he ‘maiden-born.’ On the other hand, if the name indicated the ownership of the father only, then the daughter of the Appointed Daughter also would come to be called ‘maiden-born’.

It has been said above that intercourse with the ‘maiden’ involves the transgression of the law that one should have intercourse with his ‘wife’ only, lint this law does not mean that, ‘one should not have intercourse with women other than his wife,’ or that, ‘he should not love another woman or another wife.’ Because if it meant that, then all this prohibition being already contained in this law, any separate prohibition of ‘intercourse with the wives of others’ would he entirely superfluous. What the said law does mean is that ‘the man shall cherish love for his wife,’—the cultivating of the feelings of love being conducive to great happiness. (?) The passage—‘One should not cherish desire for any woman, nor the wife of another man, as by avoiding this he falls not off from virtue’—is a mere reiteration. Or, it may only mean the injunction that ‘while remaining attached to his own wife, one should avoid intercourse with her on the sacred days.’ Even so, the injunction would be only supplementary to another. Nor would the case in question fall within the prohibition of intercourse with ‘another’s wife’; because so long as she has not been married, she cannot, be called ‘wife.’

Now what is the right course to adopt?

The right course is that the girl (Appointed Daughter) should not be wedded by any person. There are eight forms of marriage; they have been styled ‘Brāhma’ and the rest, in accordance with the nature of the manner of acceptance involved in each; and in the case of the Appointed Daughter, there is no ‘acceptance’ (or making own); as in her case, the ownership of the girl’s father does not cease. Further, the very prohibition regarding the marrying of a brotherless girl implies that one should not marry the ‘Appointed Daughter.’ It is said for instance that—‘one should not marry a brotherless girl, as her son belongs to her father’ (Gautama, 28.20). This prohibition occurs in a special context; and the trangression of this would make the marriage lose its true sacramental character; just as the marrying of a Śūdru girl by a Brāhmaṇa deprives his ‘fire’ of the ‘Āhavanīya’ (sacrificial) character.

Mere prohibition however of a certain marriage does not necessarily deprive it of its sacramental character. In many eases, for instance, people marry the ‘tawny girl,’ and several such others as are forbidden; and with the assistance of those wives they do cany on their religious duties. But if the girl belongs to the same Gotra or Pravara as her husband’s, then, even though she has been ‘married,’ she cannot fulfill the duties of the ‘wife’ for him. It is in view of this fact that in connection with the rule that—‘one should not marry the lawny girl ete., etc.,’—some people have held that the prohibition, pertains to the visible disabilities, and hence it does not stand on the same footing as the prohibition of the marrying of a ‘sapiṇḍa’ girl; though both the prohibitions occur in the same context.

“Wherefore then is there any prohibition as to the case of the Appointed Daughter falling under Marriage?” Because as a supplement to the said prohibition, there is the assertion ‘because the child belongs to the father.’

Thus then, it is only in so far as the obtaining of children is concerned that the Appointed Daughter cannot he one’s ‘wife’; she is fully entitled to assist as ‘wife’ in all that relates to sacred duties, property and pleasure.

This may ho so; yet, inasmuch as she cannot become the man’s own, there can be no real marriage (which implies ownership).

“In that case the son of the Appointed Daughter would be ‘maiden-born.’ Because he would not belong to his progenitor; he being the child of parents not lawfully wedded, if however, the marriage of the Appointed Daughter is of the nature of a ‘sacrament,’ the child fulfills both conditions—that of belonging to his progenitor and being born of duly hallowed wed-lock. And if he fails in only one of those two conditions, he is still different from the^‘maiden-born.’”

Our answer to the above is as follows:—The character of the^‘maiden-born’ son is not present in the son of the Appointed Daughter.

The definition of the ‘maiden-horn’ is thus stated—‘A son whom a maiden secretly bears in her father’s house, one should call maiden-born by name; and the child horn of the maiden belongs to the man who marries her’ (9.172). And the meaning of this is as follows.—‘If a son fulfills these conditions, he shall he regarded in this treatise as maiden-born; and the question arising as to the person to whom such a son belongs, the text adds, as an additional sentence, that ‘the child horn of the maiden belongs to the man who marries her.’ Or, this text may he taken not as defining the particular kind of son, but simply as declaring his relationship;—the sense being that ‘the maiden-born son should he regarded as related to the person who marries the girl’; so that the whole text forms one connected sentence. As a matter of fact, relationship varies with variations in the persons concerned and the attendant circumstances,—such for instance, as while the one (the maiden-born) is begotten secretly, the other (that of the Appointed Daughter) is begotten openly.

Thus the idea that the text quoted supplies the definition of the ‘maiden-born’ son should be regarded as repudiated. It only points out that the child is^‘maiden-born’....(?)

Others however have declared that the Smṛti text itself has a special hearing; the name^‘maiden-horn’ is not applied to every child of an unmarried^‘maiden’; it applies only to such a child as has been defined by Manu.

This view also we accept (??)—(135)

 

Explanatory notes by Ganganath Jha

‘Dhanam.’—‘What the appointed daughter received from her father either during his life-time or on his death.’ (Nārāyaṇa).—But Kullūka says that this prohibits the father inheriting the appointed daughter’s estate on the plea that she was his ‘son.’—According to Nandana it precludes the paternal uncle and other relatives from inheriting the property of an appointed daughter.

This verse is quoted in Aparārka (p.754), which adds that this refers to the case of the daughter who has been ‘appointed’ under the terms that ‘the son born of this girl shall be mine’, and not to that of one who is ‘appointed’ as herself being the ‘son’; in the case of the latter the husband is precluded from inheriting her property, by Paiṭhīnasi.

It is quoted in Vivādaratnākara (p. 520), which adds that this rule is meant for cases where the dead sonless daughter has no unmarried daughter or sister;—in Parāśaramādhava (Vyavahāra, p. 374), which adds that this refers to cases where no brother-is born to the lady, oven subsequently;—in Vyavahāra-Bālambhaṭṭī (p. 742 and 765);—and by Jīmūtavāhana (Dāyabhāga p. 276), which says that this refers to cases where a son has been born to the Appointed Daughter and has died.

 

Comparative notes by various authors

Yājñavalkya (2.145).—‘The property of a childless woman goes to her husband.’

Śaṅkha-Likhita (Aparārka, p. 754).—‘If an Appointed Daughter dies childless, her husband does not inherit her property.’

Paiṭhīnasi (Do.)—‘When an Appointed Daughter dies childless, her property should not go to her husband; it should be taken cither by her mother or by her mother-in-law [for these two, the text, as quoted in Vivādaratnākara, p. 521, mentions the unmarried sister.]’

Devala (Vivādaratnākara, p. 519).—‘If a woman dies childless, her property should be taken either by her husband, or by her mother or by her brother or by her father.’

Nārada (13.9).—‘If the woman has no offspring, her property goes to her husband, if they were married in the first four forms of marriage; it shall go to her parents, if she had been married in the last four forms of marriage.’