Verse 8.364

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

योऽकामां दूषयेत् कन्यां स सद्यो वधमर्हति ।
सकामां दूषयंस्तुल्यो न वधं प्राप्नुयान्नरः ॥ ३६४ ॥

yo'kāmāṃ dūṣayet kanyāṃ sa sadyo vadhamarhati |
sakāmāṃ dūṣayaṃstulyo na vadhaṃ prāpnuyānnaraḥ || 364 ||

If a man of equal status violates an unwilling maiden, he deserves immediate death; but if he violates a willing one, he shall not suffer death.—(364)

 

Medhātithi’s commentary (manubhāṣya):

What is stated here is only by the way.

‘Of equal status’—belonging to the same caste as the girl.

If he ‘violates an unwilling maiden’—i.e., deprives her of her virginity, through sexual intercourse,—he should be killed on the same day, without delay.

In the case of the willing maiden, there is no real ‘violating’; how could there be any possibility of death being inflicted? We shall explain later on what should be done in such a case.

Though in the present text only the man ‘of equal caste’ has been mentioned, yet from considerations of the castes of the parties concerned, death also would be inflicted in certain cases.—(364)

 

Explanatory notes by Ganganath Jha

This verse is quoted in Vivādaratnākara (p. 401), which explains ‘akāmām’ as ‘unwilling,’—and ‘tulyaḥ’ as a ‘man belonging to a caste intercourse with which is lawful.’

It is quoted in Aparārka (p. 858), which adds the following notes:—‘Akāmām,’ ‘unwilling’—‘konyām,’ ‘unmarried girl who retains her virginity’—if one violates,—he, whether he be of the same caste as the maiden, or of a different caste, deserves death, if he is not a Brāhmaṇa; if he is a Brāhmaṇa, some other penalty has to be imposed upon him.—If however the maiden is willing and is violated by a man who is her ‘equal’—belongs to the same caste as herself—then the penalty shall be, not death, but the ‘highest amercement.’

It is quoted in Mitākṣarā (2.288) to the effect that even in the case of a maiden of the same caste, if one has intercourse with her, when she is not willing, the penalty is death; but Bālambhaṭṭī adds that this refers to non-Brāhmaṇas,—and that the ‘death, vadha’ means the cutting off of the male organ and so forth;—and in Vīramitrodaya (Vyavahāra, 157a).

It is quoted in Parāśaramādhava (Vyavahāra, p. 321);—and. in Vivādacintāmaṇi (p. 175), which explains the meaning to be that ‘if a man despoils a virgin of the same caste without her consent, he deserves vadha, not if he does it with her consent.

 

Comparative notes by various authors

(verses 8.364-368)

Yājñavalkya (2.287-218).—‘A man who carries away a decorated maiden, of the same caste as himself, shall pay the highest amercement; but the lowest amercement, if she is not decorated; if she belongs to a higher caste, corporal punishment shall be inflicted. If the man has earned away a maiden of a caste lower than himself, there is no offence, if she has gone with her consent; otherwise, the fine inflicted shall be of the lowest degree. If the maiden has been defiled, the hands of the man shall he cut off; and he shall he killed if the maiden is of a higher caste.’

Śaṅkha-Likhita (Aparārka, p. 859).—‘If the man has intercourse with an unwilling maiden, he shall have two of his fingers cut off, and he shall also pay a fine. If the maiden is of a higher caste, he shall he killed. If the maiden belongs to the same caste and has been willing, he shall pay the nuptial fee and also give her ornaments and a double dowry, and then accept her as wife.’

Nārada (12.71-72).—‘When a man has connection with a maiden against her will, he shall have two fingers cut off. If the maiden belongs to the highest caste, death and the confiscation of his entire property shall he his punishment. When, however, he has connection with a willing maiden, it is no offence; hut he shall bestow ornaments on her, honour her with other presents and then lawfully espouse her.’

Bṛhaspati (23.10).—‘The King shall confiscate the entire property of one who violates an unwilling woman; and having his penis and scrotum cut off, shall cause him to he paraded on an ass.’

Āpastamba (2.26-21).—‘If one has intercourse with a maiden, his porperty shall he confiscated and he shall be banished.’

Matsyapurāṇa (Vivādaratnākara, p. 401).—‘One who violates an unwilling maiden, shall he immediately killed; if he defiles her with her consent, he shall he fined the first amercement.’

Ārthaśāstra (p. 172).—‘If one violates a maiden of the same caste as himself, before puberty, his hands shall be cut off, or he shall be fined four hundred; if she has attained puberty, his middle and index fingers shall be cut off, or a fine of 200 shall be imposed, and he shall pay damages to her father.’

Arthaśāstra (p. 173).—‘If one outrages a girl after marriage, he should pay a fine of 54 Paṇas; he shall also make good the nuptial fee paid by her husband and also the expenses of her marriage.’

Do. (p. 172).—‘One may make love to a maiden who has had seven monthly courses, who has not met her husband after her betrothal; nor shall he pay any damages to the father. If three years have elapsed since her puberty there is no offence in a man of the same caste having intercourse with her after three years; even one of inferior caste incurs no offence, if the girl is not decorated; he would be a thief if he took with the girl the ornaments given her by her father.’

Do. (p. 174).—‘If a girl is willingly deflowered by another girl of the same caste, she should pay a fine of 12 Paṇas, and the woman who has outraged her, double of that. If a man deflowers a girl without her consent, he shall be fined a hundred and shall also pay the nuptial fee. If she has deflowered herself, she should he made the King’s slave. If one forcibly takes away a maiden, he should he fined 200; if she is adorned with golden ornaments, then the highest amercement.’