Chapter 3.6b - The practice of Niyoga

Niyoga is an age-old social practice, which has become obsolete in modern age. This practice of ancient Hindu Law resembles the Levirate of the Jewish Law.^[1] The writers of the Dharmaśāstras are not unanimous about the fact, whether it is to be allowed or not. Manu censures niyoga vehemently and calls it a beastly practice (paśudharma). He declares that niyoga cannot take place in case of widow of a twice-born and is said to be in vogue only in the reign of king Veṇa.^[2] However, immediately before prohibiting this practice, he lays down all the process to be observed in niyoga.^[3] Further, the Manusmṛti declares the process niyoga, with a comparison of the woman to field, husband to owner of field, the person, who is allowed to procreate child with another’s wife to owner of seed, and the child begotten in such union to crop. Thereby, it propounds the rule of niyoga that in presence of a special contract between the owner of the field and the owner of the seed, both are considered sharers of the crops, otherwise the owner of field receives the crops.^[4] He expressly permits niyoga in particular case of a bride, whose future husband dies before marriage.^[5] Moreover, Manu gives the rule of partition concerning the son born as a result of niyoga.^[6]

Considering the above-mentioned account, Julius Jolly is of the opinion that Manu’s view regarding niyoga is contradictory.^[7] Robert Lingat holds that though Manu condemns niyoga and such other practices yet he might have confronted with the customs for prohibition to be efficacious.^[8] However, the reconciliation of this provision, may suggest its acceptance for the widows of the Śūdras, excluding three upper castes.

The practice of niyoga does not seem to be referred in terms of disapproval by Yājñavalkya. In fact, the texts of the Vyavahārādhyāya suggest that the son born of such a practice occupies a good position. Yājñavalkya declares that a son begotten by a sonless person on the soil of another man through legal appointment is lawful heir and can offer funeral cakes for both.^[9] Thus, the practice of niyoga is legally recognised by Yājñavalkya. It is described under the Ācārādhyāya in the following words-in case of a younger brother of the husband, in his absence a sapiṇḍa, in his absence a sagotra, with the permission of elders, having his body rubbed with clarified butter, cohabits with a sonless woman in seasons, till she conceives, then the son born by this procedure is known as Kṣetraja. He who does not act according to the procedure will be condemned.^[10] It is already shown in the table furnished in this chapter, displaying the places of different kinds of son that in the Yājñavalkyasmṛti, the Kṣetraja son is placed in third rank after the Aurasa and Putrikāputra. The legal affiliation to such son is also distinct when the author states that the sons born of legally wedded marriage or through the process of niyoga, being free from defect, are entitled to inherit the property of their father, who cannot inherit due to some defects.^[11]

Thus, it appears that during the time of the Yājñavalkyasmṛti, niyoga is favoured in the society, as the text gives legal sanction to a son born of such practice, which may have occurred with changing times and prevailing customs.

Footnotes and references:

[1]:

Vide, Mitter, D. N., The Position of Women in Hindu Law, page361

[2]:

nānyasminvidhavā nārī niyoktavyā dvijātibhiḥ anyasinhi niyuñjānā dharmaṃ hanyuḥ sanātanam// ayaṃ dvijairvidvadbhiḥ paśudharmo vigarhitaḥ// manuṣyāṇāmapi prokto vene rājyaṃ praśāsati// Manusmṛti, 9.64-68

[3]:

Ibid., 9.57-63

[4]:

Ibid., 9.51-54

[5]:

yasyā mriyeta kanyā yā vācā satye kṛte patiḥ// tāmanena vidhānena nijo vindeta devaraḥ// Ibid., 9.69

[6]:

Ibid., 9.120-121

[7]:

Jolly, J., Op.cit., page 155

[8]:

Lingat, R., The classical Law of India, page 182

[9]:

aputreṇa parakṣetre niyogotpāditaḥ sutaḥ/ ubhayorapyasau rikthī piṇḍadātā ca dharmataḥ// Yājñavalkyasmṛti, 2.127

[10]:

Ibid.,1. 68-69

[11]:

aurasāḥ kṣetrajāstveṣāṃ nirdoṣā bhāgahāriṇaḥ/ Ibid., 2.141