Verse 8.359

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

अब्राह्मणः सङ्ग्रहणे प्राणान्तं दण्डमर्हति ।
चतुर्णामपि वर्णानां दारा रक्ष्यतमाः सदा ॥ ३५९ ॥

abrāhmaṇaḥ saṅgrahaṇe prāṇāntaṃ daṇḍamarhati |
caturṇāmapi varṇānāṃ dārā rakṣyatamāḥ sadā || 359 ||

In a case of adultery, a non-Brāhmaṇa deserves the penalty ending in death; as the wives of all the four castes are always the most deserving of protection.—(359)

 

Medhātithi’s commentary (manubhāṣya):

The nature of ‘adultery’ has been defined. Penalties for it are now laid down.

‘A non-Brāhamaṇa’—the Kṣatriya and other castes.

‘In cases of adultery’—when adultery has been committed. ‘Of all four castes’—irrespectively of the high or low caste of the woman concerned.

‘Penalty of death’—the punishment consisting in striking till death is brought about.

“How is it that the same penalty applies to the case of adultery with a Brāhmaṇa as well as a Śūdra woman?”

The text adds the next sentence by way of answer to this question—‘For the wives of all castes are the most deserving of protection.’ Whosoever’s wife she may be, she needs to be guarded much more carefully than one’s body and property. Since the ‘admixture of castes’ is the same in both cases, the family of the Śūdra is ruined by it, just as much as that of the Brāhmaṇa.

What is meant by the question is this—“what is found here is a mere assertion; some reason for this should be explained; now what is this reason?”

In answer to this the ancients have offered the following explanation:—The penalty here prescribed is not meant to apply to all forms of ‘adultery,’ but only to that which consists in the chief form of it, consisting in the actual intercourse, which consists in obtaining a sensual pleasure by a particular form of contact. How could the same penalty be inflicted in the case of actual sexual intercourse, as also in that ‘conversing at a watering-place’ and such places (which also has been declared to be a form of ‘adultery’)? Hence the conclusion is that the death-penalty is to be inflicted only in the case of a ‘non-Brāhmaṇa’—i.e., a Śūdra—committing adultery with a woman of the twice-born castes,—and not in the case of any other person. For it cannot be right to make equal things that are not equal. Hence in the case of the forms of ‘adultery’ described above, the exact penalty has to be determined by the circumstances attending each individual case. For instance, if in a certain case it be found for certain that the ‘offering of help’ and other approaches were made solely with a view to actual sexual intercourse, the right penalty would be the extreme one of death; as the case would not stand upon a different footing; as in both cases the real motive is found to be the same.

It has teen asked—“if the extreme penalty is to be inflicted in the ordinary forms of ‘adultery,’ what would it be in the case of real ‘adultery’?”

But ‘real adultery’ is not something different. The denotation of the term is not to be fixed by ordinary parlance; hence it cannot be right to argue that the extreme penalty is to be inflicted in a case where there is an act which your august self is pleased to call ‘real adultery.’

“Adultery with women has been forbidden; hence the question as to how the same punishment is to be meted out in all cases of it should he addressed to the scriptures.”

But there is similar prohibition regarding the ‘offering of help’ and such other acts also.

“Well, in that case, it would follow that in all cases the same expiatory rite would have to be performed.”

Why should this be regarded as an undesirable contingency? The contingency would certainly arise if the act concerned were spoken of as ‘adultery.’ Though in reality the term is applied only to a case where there has been emission of semen, yet punishments are meant to be deterrent, by reason of their causing pain; hence in the case of such acts as the ‘offering of help’ and the rest, penalty equal to that in the case of actual intercourse has to be inflicted, on the ground that if such acts as ‘conversation’ and the rest were associated with small punishments, then men would he tempted to repeat them; and by frequent conversations with women, their passion would become whetted; so that falling a prey to the arrows of Cupid, they would not mind the small punishments inflicted by the king, and would commit the act even at the risk of their lives. On the other hand, if at the very first approach, the man is met by a severely deterrent punishment, the little acts would not be repeated, and the real act might he averted.

It is for this reason that it has been considered right to inflict a severe punishment upon those who may just begin to make approaches to the wives of other men.

So far as the present verse is concerned, we find the term ‘prāṇānta,’ ‘ending in death,’—which shows that the beginning of the penalty would be something else; for unless a thing has a beginning, it can have no end. The term ‘ending in death’ means that of which death is the end; i.e., the punishment should go on being inflicted until death comes about. Thus it is that all such punishments as ‘confiscation of property,’ ‘cutting off of limbs’ and so forth become included.

Each of these has been found in other cases to constitute a ‘punishment’ by itself. So that, when a number of punishments have been prescribed, since all these cannot be inflicted for any single crime, the right conclusion is that in the case of a non-Brāhmaṇa committing adultery with a twice-born woman, the highest of those punishments shall be inflicted, and the man shall be put to death. But even in the case of women of lower castes, the death-penalty shall be inflicted in the case of the man committing adultery with an unwilling family-woman whose husband is alive.—(359)

 

Explanatory notes by Ganganath Jha

‘Abrāhmaṇaḥ’—‘Kṣatriya and the rest’ (misbehaving with a woman of the higher caste) (Medhātithi and Nandana);—‘Śūdra misbehaving with a Brāhmaṇa woman’ (Kullūka and Rāghavānanda).

This verse is quoted in Vivādaratnākara (p. 388), which says that this refers to the ‘non-Brāhmaṇa’ misbehaving with a woman of a superior caste;—in Vyavahāra-Bālambhaṭṭī (p. 115);—and in Vivādacintāmaṇi (p. 174) as laying down the penalty for one of the lower caste. misbehaving with a woman of the higher caste.

 

Comparative notes by various authors

Baudhāyana (2.4.1-2).—‘Anybody but a Brāhmaṇa shall suffer corporal punishment for Adultery;—the wives of men of all castes must be guarded more carefully than wealth.’

Āpastamba (2.26.20).—‘If a man has actually committed adultery, his organ shall be cut off together with the testicles.’

Bṛhaspati (23.10-12).—‘If a man violates an unwilling woman, the King shall confiscate his entire property, have his penis and scrotum cut off and have him paraded on an ass. When a man enjoys a woman by fraud, bis punishment shall be confiscation of his entire wealth; and afterwards he shall be branded with the mark of the female organ and banished from the town. The highest fine shall be inflicted for connexion with a woman of equal caste; half that for connexion with a woman of a lower caste; and a man who has connexion with a woman of a higher caste shall be put to death.’

Kātyāyana (Vivādaratnākara, p. 389).—‘When a man has completed his intercourse with the woman, by force, the penalty of death shall be inflicted.’

Vyāsa (Vivādaratnākara, p. 392).—‘If a man has intercourse with a woman who comes to him of her own accord, the punishment shall be half of that in the case of the woman being unwilling.’

Arthaśāstra (p. 172).—‘A man shall never take liberties with an unwilling woman; if he has illicit intercourse with a willing woman, he shall be fined 50 Paṇas, and the woman, half of that.’