व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

tance (of the girl) would have to be admitted to be in a figurative sense
and in other cases (viz marriage of a brāhmaṇa with the daughter of a brā-
hmaṇa) both (gift and acceptance) would have to be admitted to be in the
primary sense—thus there will be conflict inasmuch as two senses (of the
same word in the same rule) will have to be resorted ¹ to That the
brāhma and other forms of marriage are in vogue among kṣatriyas is not
disputed by any one² *Therefore the revered Miśra (Pārthasārathi
miśra) says in his Tantraratna³ that the gift of a son and the like is
to be understood in a figurative sense. Nor can it be assumed from the
popular use of such language as one's own wife sons and daughters, that
there is ownership in them since (the use) of that word (viz sva) can be
also explained as expressing relationship as in one's own father one's own
mother' and the like. And the word 'sva' does possess the power of ex-
pressing relationship also since the lexicon (of Amara) says sva when
masculine is used in the sense of relationship or one's self in all the
three genders in the sense of what belongs to one and when not in the
feminine (i e in masculine and neuter) it means wealth As to the

1. This doctrine of the mīmāṁsā is referred to in Bhimacarya v Ramacarya 11 Bom.
   L. R. 654 at p. 661 (=33 Bom 452) Tukaram v Narayan 36 Bom. 339 at p. 356 (F B.),
   6 Cal. 119 at p. 126 (F B.)
2. The whole discussion is started for showing that there is no ownership in wife and
   children Nīlakaṇṭha cites the illustration of an adopted son and argues that there at least
   the gift of a boy and acceptance are not meant to be literal, but in a figurative
   sense similarly in marriage also, the acceptance of a girl by the husband is not
   like that of a chattel, but is only figurative. If a kṣatriya married a kṣatriya girl
   in the Brāhma form he being a kṣatriya is not entitled to accept a gift so
   though the essence of the Brāhma form according to Manu (III 27) and others is
   the gift of the girl, there can be no acceptance by a kṣatriya in the primary sense. Hence
   in the daughter born of such a marriage there can be no real ownership (as there is none in
   her mother) Therefore if a kṣatriya gives his daughter in marriage to a brāhmaṇa, the gift
   (dāna) is also figurative and therefore the pratigraha (acceptance) also is figurative.
   But if a brāhamaṇa gives his daughter in marriage to a brāhamaṇa both gift and acceptance
   will be in the primary sense. Therefore in the general rule about the brāhma form
   which is applicable to the three classes, the words gift and acceptance would have to be used
   in two different senses, which is condemned by all rules of interpretation Hence both gift
   and acceptane must be regarded as figurative in all cases of marriage The author brings
   in the brāhma form because it might be argued that in the rākṣasa form as the girl was
   forcibly carried away (Manu III 33) the husband became her owner Modern decisions
   also hold that the presumption as regards marriage in the three higher classes and even
   among respectable Śūdras is that the marriage is in the brahma form. Vide Jagannath
   Raghunath v Narayan 34 Bom. 553 at p 559
   3 The Tantraratna is a work of Pārthasārathi miśra wherein he explains passages
   from Śabara and Kumārila. He flourished before 1150 A. D and after 900 A. D. as he is
   quoted by Halāyudha in his Mīmāṁsā-sarvasva and is himself later than Vācaspatimiśra.
   P 93 (text),