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

250 VYAVAHĀRAMAYŪKHA [S. XV 9-18 / M. p. 186 L10-p. 187 L10]
Kātyāyana says :
He who defiles with filth a tank a garden or holy water should be fined
the first amercement after making him remove the filth
Yājñavalkya (II 155) says
For destroying boundary, for encroaching beyond the boundary and for
usurping a field the fines (respectively) are the lowest, the highest the
middling.
Manu (VIII 264) says
One who usurps by intimidation a house a tank, a garden or a
field should be fined 500 (panas) but the fine is two hundred if he did it
through ignorance.
Kātyāyana says
The fruits and flowers of trees growing on the boundary between two
fields should be declared as joint between the owners of the fields.
Kātyāyana says
But where the branches of trees growing in one man's field are spread
over another's field he should be considered as the owner in whose field
the (branches) stand spread out.¹
Yājñavalkya (II 157) says
When a man without informing the owner of a field makes a water
-course in that field the owner (of the field in which the setu is made)
is entitled to the profit arising therefrom or in his absence the king ²
The same author (Yāj. II 156) says
A dike that produces benefit should not be forbidden because it causes
some slight injury as also a well which occupies little space but has abun-
dant water (should not be prohibited) because it deprives another of some
land.
Na niṣedhyaḥ (should not be prohibited) has to be understood
(after kūpaḥ)
Nārada (p 158 v 17) also says :
(The erection of a) dike in the middle of another man's field is not
forbidden if it confers great benefit while the loss is trifling large in-
crease (of crops) is desirable even if there be (slight) loss (of land)
Nārada (p 159 v 20) says
If a man were to repair (start afresh) a dike erected in former times

1. Kātyāyana draws a distinction between jātāḥ and saṁsthitāḥ. Therefore it is
   proper to understand after saṁsthitāḥ in the fourth quarter the word śākhāḥ. Mandlik
   (p. 136) translates in whose field the trees stand But this is not correct. The reference
   is to the fruits and flowers growing on such branches.
2. Setu does not mean bridge here, but a dike or watercourse. A setu is of two
   kinds, one kheya (which is dug into the ground) and the other is bandhya (which prevents
   the access of water) Vide Nārada p. 158 v 18. The purport of the verse is that a setu
   should not be made in another's land without his permission or without giving him some
   consideration.
   P 225 (text) 7 P 226 (text)

S. XV, 18-XVI, 1.2. ] BOUNDARY DISPUTES 251
M, p. 187 l.10-p. 188 l. 2 ]
but which had become dilapidated, without the permission of the owner,
he shall not have the (use and) profit thereof.
Vyāsa says :
He who having taken a field does not himself cultivate it nor causes it
to be cultivated by another should be made to pay to the owner of the land
its produce and a fine equal in value to the king ¹
‘S'adam’ means ‘as much crop as it was possible to raise from the
field.’
Here (ends the section) on boundary disputes.
Now (begins the section on) Abuse.
*Bṛhaspati (p 355 vv. 2-4.) says :
That is said to be abuse of the lowest degree when the country, village,
the family or the like of a man is abused or sinfulness is ascribed (to a man)
without specifying any definite act (or object).² Speaking of one’s
(the abuser's) connection with the sister or mother (of the abused), or
ascription of minor sins (to the abused), is termed abuse of the middling
sort by those who are learned in the S'āstras.³ Charging a man with
taking forbidden food or drink, or taxing him with (the commission of)
mortal sins, mercilessly exposing a man’s weakest point—this is termed
abuse of the highest degree ⁴
‘Dravyam vinā’ (in the first verse) means ‘without specifying any
definite object,’ that is, it is merely a verbal abuse, ‘abhighattanam’ means
‘exposing’ (or divulging) Visnu (Dh S V. 35) says ‘For abuse of one of the
same class (as the abuser) a man should be fined twelve panas.’ In another
smṛti it is said :
When two parties have been guilty of abuse (insult) and both have begun
(to quarrel or abuse) at the same time, both shall undergo the same punish-
ment, if no differentiation is apparent (in respect of their culpability).⁵
Nārada (p. 208 v. 9) says :
He who is the first to offer an insult is decidedly to blame; he who
returns the insult is also a wrong-doer; but the one who is the first (i e.
who began) shall undergo the heavier punishment ⁶

1. Compare Yāj. II 158.
2. Compare Nārada p. 207 v 1.
   3 Vide Manu XI, 59-66 and Visnu chap. 37 for upapātakas
3. For mahāpātakas vide Manu XI. 54
4. This is Nārada p 208 v. 8.
5. ‘Āksārayet’ means ‘one who falsely charges with the commission of a sin,’

• P, 227 (text).

252 VYAVAHĀRAMAYŪKHA [S. XVI 1.8-6
[M. p. 188 ll. 2-82
Manu (VIII 267) says
One defaming (or abusing) a brāhmaṇa shall incur the fine of a
hundred paṇas if he be a kṣatriya, if a vaiśya a hundred and fifty or two
hundred, but if a śūdra he shall be liable to corporal punishment.¹
*Bṛhaspati (p 356 v 7) says
For a brāhmaṇa abusing a kṣatriya the fine is fifty, for abusing a
vaiśya half of fifty (i.e. twenty five), for abusing a śūdra twelve and
a half.²
The same author (Bṛhaspati p. 356 v 12) says with reference to a śūdra:
(A śūdra) giving instruction as to the peculiar duties (of the classes
&c.) loudly uttering the Veda or reviling brāhmaṇas is punished by
cutting out his tongue.³
Manu (VIII 275) says
A man accusing his mother, father, wife, (elder) brother, father-in-law
and preceptor (of sin) shall be made to pay a fine of one hundred paṇas,
as also he who does not make way for his preceptor.
Bhrātā means the elder one, since the word is in association with
the father and other (venerable persons). In the Mitākṣarā and other works
it is said that (this punishment is incurred) in the case of the mother and
the rest (even though) they be guilty (of the sin charged) and in the case
of the wife (only) if she be innocent. Yājñavalkya (II 208-209) says
For a verbal threat of injuring the arms, the neck, the eyes or thigh,
the fine shall be a hundred, and a half of it in the case of the foot, nose,
ear, hand or the like. When however a feeble man speaks thus, he should
be fined ten paṇas, so one who is unable (to carry out his words into
execution) should be made to furnish a surety for the safety of the other.
†The same author (Yāj. II 205, 211) says
The king shall compel a man to pay a fine of twenty five paṇas who
abuses another by saying "I shall have carnal intercourse with your
sister or mother". For abuse of brāhmaṇas learned in the three Vedas,
of the king and of gods the fine is the highest amercement.
Nārada (p. 210 v. 21) says
One who calls an outcast an outcast or a thief a thief is equally
criminal (with those whom he charges) on account of the texts to that

1. 'Vadha' is frequently used in the sense of corporal punishment. Vide Manu VIII
   129 where we have dhanadaṇḍa and vadhadanda. Mandlik translates vadha by death
   here. But this is too drastic a sentence, since Manu VIII. 270 prescribes only cutting the
   tongue. Vide also Bṛhaspati a little below.
2. Compare Gautama XII. 8-10. As each succeeding fine is half of each preceding it
   is better to take 'ardhatrayodaśa' as 12½ and not 13½ (in spite of the Mit. on Yāj. II 201).
   Vide text P. 219 'ardhatrayodaśapaṇaḥ' and note thereon above.
3. Compare Gautama XII 4; Āp. Dh. S. II 10, 27, 14.

• P. 223 (text). † P. 223 (text)

S. XVI. 1. 6-XVI. 2.3 ] ABUSE 253
M. p 138 l, 32-p. 139 1.21]
effect; but (if he reproaches them) falsely he is twice as guilty (as
they would be).¹
Yājñavalkya ( II 204 ) says :
He who by true, untrue or ironical statements ridicules persons want-
ing in a limb or organ of sense or diseased persons, should be fined twelve
panas and a half
Us'anas says •
For him who pleads 'such a thing was said by me from ignorance, care-
lessness, envy or friendship; I shall not say so again' (the king) should
prescribe half (the ordinary) fine
Here ends (the section on) abuse
Now begnis (the section on) assault.
Nārada (p. 207 v 4) says
Hurting the limbs of another with the hand, foot, weapon or other-
wise or defiling a man with ashes (or other impure substances) is termed
assault
*Bṛhaspati (p 357 v 4) says:
He who having been abused returns the abuse or having been beaten
returns the blow or strikes an offender down commits no wrong²
Kātyāyana says :
Bhṛgu has ordained that the highest fine shall be inflicted for cutting
off the ear, nose, foot, eye, the tongue, the penis or hand; and the
middling one for injuring (or wounding) any one of them.
Yājñavalkya ( II 213-214 ) says •
For throwing ashes, mud or dust the fine is declared to be ten panas;
and double that amount for assaulting a man with an impure thing or
with the heels or with spittle This is so as regards offenders of the
same class with (those whom they offend). (for offences) against the
wives of others (of whatever caste) or against one of a higher caste
(than the offender) the fine is double (of the above). The fine is half
1, 'Vacanāt' may also mean 'even if he only says what is true.' The mere truth of
an imputation was no defence in a charge for defamation Vide exception one to sec 499 of
the Indian Penal Code, which requires that the imputation be made for the public good.
Compare Manu VIII 274 Kātyāyana (verse 176) lays down that if a man were called
'patita' in order that others should avoid contact with him, there was no punishment.
2 Br (p 359 verse 13) has another verse, which is similar to Nārada's quoted
under 'abuse' This verse does not conflict with them It states the right of private
defence and also means to convey that the man who returns an abuse or a blow is not
equally guilty with him who starts the affair.

• P. 280 (text).

254 VYAVAHĀRAMAYŪKHA [ : S. XVI. 2. 3-4
[ M. p 189 l. 21 p. 140 l.31
] (of above) if the offence be against persons of lower class (than the
offender) (For acts committed) through ignorance intoxication or the
like there shall be no fine¹
† Pārṣṇiḥ means the hind part of the foot Kātyāyana says
The fine shall be raised to fourfold when (assault is committed) with
vomited matter urine or ordure and the like sixfold if (these are thrown)
on the middle of the body and eightfold if thrown on the head
Yājñavalkya (II 216) says
When the hand and foot are (only) raised up (to strike) the fine is
respectively ten and twenty paṇas. For threatening each other with a
weapon, the middle amercement is prescribed for all castes
*The same author (Yāj II 217 218) says
For violently pulling the foot hair garment or hand the fine is ten
paṇas the fine is one hundred for violently pulling a man after covering
him with a garment and tightly tying him with it and then trampling him
under the feet A man who causes pain with a stick or the like and also
causes blood (to come out) should be fined thirty-two paṇas, double that
sum when blood is seen (to come out)²

• The meaning of pīḍā etc is for covering with a garment, tightly
  tying (or dragging) and trampling under feet (the fine) is one hundred
  The same author (Yāj II 219 215) says
  The middling fine (is prescribed) for breaking a hand foot or tooth,
  for tearing (or piercing) the ear or nose, for opening up a sore (that was
  healed up) for so severely beating a man as to leave him almost dead.
  The limb with which any one not a brāhmaṇa causes pain or injury to a
  brāhmaṇa should be cut off When (a weapon or stick) is raised for
  striking (a brāhmaṇa) the first amercement (should be awarded) and
  half of it if the weapon was only touched (and not raised)
  Manu (VIII. 279-280) says
  With whatever limb a man of the lowest caste (i.e a śūdra) strikes one
  of a higher class that very limb of his should be cut off this is the ordi-
  nance of Manu If (a śūdra) raises his hand or a stick (for striking
  one of a higher class) he is liable to have his hand cut off
  Kātyāyana says
  Just as different fines have been prescribed for abuse according to the
  direct or reverse order (of classes) so also for assault (different) fines
  should be inflicted according to the order (of the classes)
  1 The Mit. takes uttameṣu to mean more learned and better in character than
  the offender
  2 The reading soṇitena samam, though of almost all mss., is bad, as it conflicts
  with the fourth quarter of the verse Mit. and Aparārka read soṇitena vinā (without
  shedding blood) which makes good sense,
  P 231 (text)

S. XVI 2,5-XVII 1 ] ASSAULT 255
M. p. 140 l.31-p.141 l.22 ]

• Visnu (V. 73) says 'when several simultaneously strike down one
  man, the fine for every one of them shall be double of that declared' (where a
  singlo man strikes another).¹ Kātyāyana says:
  For injury to the organs of the body just as a fine is to be imposed
  (by the king), so also something must be given for appeasing the man
  (injured) and also for curing him (as may be fixed) by experts ²
  'Tuṣṭikāram' means 'what would satisfy the man beaten'; 'samut-
  thānam' means 'the price of drugs etc.'; 'abhijñaiḥ' means 'by experts',
  the meaning being 'what may be fixed by experts should be paid.' Yājña-
  valkya (II. 225-226) says as to striking beasts:
  For beating, shedding blood and for cutting off the horns and the limbs
  of minor beasts (like goats, sheep and deer) the fine shall be from
  two paṇas (upwards),³ for cutting off their organs of generation and for
  causing (their) death the middle amercement (shall be inflited) and
  the price (of the beast be paid to the owner) The fine is double for
  these (offences of beating, shedding blood and etc.) in the case of large
  animals (like bullocks, horses and etc.).
  In respect of damage to trees Manu (VIII. 285) says '
  The settled rule is that a fine must be inflicted (for injuring trees)
  according to the usefulness of the several kinds of trees.⁴
  Thus ends ( the section on ) assault.
  Now begins ( the section on ) theft.
  Nārada (pp 204-5 vv. 14-16) speaks of three kinds of chattels as being
  useful (in the treatment) of theft.
  Earthenware, a seat, a couch, bone, wood, leather, grass and the
  like, leguminous corn (like māsa, mudga), cooked food-these are termed
  articles of small value Clothes made of materials other than silk, beasts
  other than cows, metals other than gold, rice and barley (these are declared to
  be of) middling value; ‡gold, precious stones, silk, women and men (slaves),

1. Compare Yāj II 221 for almost the same words.
   2 Compare Yāj. II 222 and Br (p 358 v 10)
2. This means according to Aparārka two panas for beating, four for drawing blood,
   eight for cutting off horns, 16 for cutting off a limb, while the Mit says that it is res-
   pectively 2, 4, 6, 8
3. Compare Visnu Dh S V 55-59 Those who destroyed trees had to pay the price
   also to the owner Vide Yāj. II 228 for higher fine for cutting trees growing near temples and
   boundaries.

• P. 232 (text). ‡ P. 233 (text).

256 VYAVAHĀRAMAYŪKHA [ S. XVII. 1 8
[ M. p. 141 L28 p. 142 l.17
cows, elephants and horses, and what belongs to a god a brāhmaṇa or a
king—these are regarded as articles of high value ¹
Here the same author describes open thieves
Traders quacks, gamblers, (corruptible) assessors (and judges)
those who accept bribes cheats those who (profess to) foretell and
interpret portents and fortune, nautch girls (or prostitutes) those who sell
imitations (such as imitation pearls and jewels) (hired servants) refusing
to do their work, those who profess to arbitrate (and make money by favour
ing one side) false witnesses, so also jugglers—these are open thieves ²
Similarly in another smṛti (Nārada p 223 vv 2-3) it is said
Open thieves are those who employ false measures and balances (i e
weights) receivers of bribes, those who are full of tricks, impostors,
women of ill repute (prostitutes) those who manufacture imitations those
who make their livelihood by declaring how a person may bring about his
welfare (i e who sell amulets etc)—these and such like persons are
considered open thieves in this world ³
Bṛhaspati (pp. 360—vv 7 15) says :
A merchant who sells articles after concealing their blemishes or after
mixing (good and bad ones together) or sells (old articles as new) after
repairing them should be made to pay double (the price of) the goods (to
the purchaser) and an equal fine (to the king) ⁴
*That physician who, though unacquainted with drugs and spells and also
ignorant of the true nature of a disease yet takes money from the sick shall
be punished like a thief. Gamblers playing with false dice, nautch girls
those who appropriate to themselves the king s taxes, astrologers and cheats—
these rogues are declared to be liable to fine. Assessors pronouncing an un
just decision also those who live by taking bribes, those who deceive people
that put trust in them—all these should be banished (from the country)
Those who without knowing the lore of stars or portents, yet expound
omens to people should be sedulously punished. Those who, endowing them-
selves with staff and deer⁵ skin, show themselves off to people (as ascetics)
and harm mankind in this disguise should be corporally punished by the

1. Yāj. II. 275 alludes to these three classes of movables, the subjects of theft.
2. These verses are Bṛ p. 360, vv 3-4. Manu (IX 256-257,) divides thieves into two
   classes, prakāśa (open) and aprakāśa (concealed) or pracchanna. Akriyākāriṇaḥ may
   also mean those who set up evidence that is no evidence.
3. Dr Jolly translates 'pratirūpakāḥ as those who walk in disguise but that is
   doubtful. He translates maṅgalādeśa-vṛttayaḥ as those who live by teaching the per-
   formance of auspicious ceremonies. Compare Manu IX. 258-260 for open thieves.
   4 An equal fine may mean equal to the price or it may mean equal to the double
   that is to be paid to the purchaser
4. Vide Baudhāyana Dh. S. II 10 12 and Manu VI 52 for staff and deer-skin being
   two of the peculiar marks of a sannyāsin.
   P 231 (text).

$\left.\begin{aligned} & S. XVII. 3-6
& M. p. 142 l 17-p. 143 l 10 \end{aligned}\right]$ THEFT AND ROBBERY 257
king's officers. Those who, by repairing and polishing articles of small value,
(make them appear as of great value and deceive the ignorant should be
fined in proportion to the gain (made by them). Those who make false gold,
false jewels, false coral and the like should be made to return to the purchaser
the price and to the king a fine double (of the price of the article they
professed to sell). If arbitrators cheat (either party) through friendship
or covetousness or the like motive and if witnesses give false evidence,
they should be made to pay a fine double (of the claim).
*Vyāsa says
'Those, who stealthily move about at night, furnished with tools (for
robbery) and whose places of residence are not known, should be known as
secret thieves.'
The same author (Vyāsa) says
A pick-pocket, a house-breaker, a highway robber, a cut-purse, he who
steals women, men, cows, horses and other animals—these are declared
to be nine kinds of thieves$^1$
'Sandhi' means 'the joint of a wall and the like' Yājñavalkya (II. 274)
says :
The pickpocket and the cutpurse should be deprived of their two fingers
(viz. the thumb and the index finger), for the second offence they should
be deprived of the hand and the foot$^2$
'Saṃdaṃśaḥ' means 'the thumb and the forefinger.' Manu (IX. 276) says.
'The king should cut off the hands of those robbers who having made a
hole in a wall commit a theft at night and should impale them on a sharp
stake
Bṛhaspati (p 362 v. 17) says :
So highway robbers should be bound and should be hanged by the neck
from a tree The king should cut off the fingers of a cut-purse when he is
caught for the first time, his hands and feet (when caught) a second
time and he deserves death (when caught) a third time$^3$
Aṅguli' means 'the forefinger and the thumb.'
Nārada (p. 225 vv. 16-17) states a special rule when the thief runs
away taking the booty with him :

1. 'He who steals animals'-this contains five kinds of thieves.
2. 'Saṃdaṃśa' means 'tongs' The Mit explains that the picketpocket's hand
   should be cut off and the tong-like two fingers of the cutpurse should be cut off. For repeat-
   ing the offence, one hand and one foot was to be cut off, according to V. R As they found
   the two fingers most useful in theft they were to be deprived of them.
3. This last verse is Manu IX 277 On account of Yāj. II 274 the fingers meant here
   are the forefinger and the thumb though the plural 'aṅgulīḥ' is used in Manu. The
   Mayūkha seems to have read 'aṅgulī granthibhedasya.'
   * P. 285 (text)
   V. M. 33

258 VYAVAHĀRAMAYŪKHA [ S. XVII. 6-8.
[ M p 148 l. 10-p. 144 l. 7
*In whosesoever land (range or jurisdiction) a theft takes place
should try to catch the thief or he should be made to pay (the price of)
the thing stolen, if the footmarks have not gone out from that land or
range). When the footmarks (of the thief) are not seen anywhere else
after leaving the place (where the theft was committed) the king should
make neighbours, the guardians of the roads (marches) and the governors
of the district pay (for the stolen goods).
Yājñavalkya ( II. 272 ) also says:
The village shall pay (the price of stolen goods) when the theft took
place within its own borders (provided footmarks are not found to go out
of the village) or (that village should pay) to which the footmarks (of
the thief) are traced if (theft committed) beyond one krośa from the
village, then the five (surrounding villages) or ten villages should pay.¹
On the point of kidnapping women Vyāsa says:
The kidnapper of a woman shall be burnt on an iron bedstead with
a fire of grass (or weeds). The kidnapper of a man should have his
hand and foot cut off and be exposed in a thoroughfare.²
Bṛhaspati ( p. 362 v 19 ) says:
A cow-stealer shall have his nose cut off and shall be plunged into
water after being bound.
Nārada ( p. 227 v 28 ) says ³
If a man kidnapped a married woman his whole wealth (was to be
confiscated by the king) but if he kidnapped a maiden he should be
killed. For a theft of horses elephants and metals, the king should take
(the whole wealth); this is the view of Bṛhaspati.
The word sarvasvam is to be repeated (in the second half verse).
Vyāsa says:
Of a thief of cattle half the foot should be cut off with a sharp weapon.
‡ Nārada ( p. 227 v 29 ) says:
On him who steals a large animal (elephant, horse &c.) the highest
fine shall be inflicted; the middling on him who steals an animal of middle
size and the first for theft of minor animals.
Manu ( VIII 320 ) says:
On him who steals more than ten kumbhas of corn corporal punishment
shall be inflicted. In other cases (i.e. theft of one to ten kumbhas
of corn) he should be fined eleven times as much (as the price of stolen

1. V. R. explains village as headman of the village while Mit. explains it as
   villagers.
2. Compare Bṛ. p. 362 v 18.
3. Nārada has only the first half. Compare Manu VIII 323. The conflict about
   punishments between various smṛtis is due to considerations of the castes of the thieves, their
   being poor or well-off and the worth of the object stolen. So says V. R.

• P 236 (text) ‡ P 237 (text).

S. XVII. 8-10 ] THEFT AND ROBBERY 259
M. p. 144 ll. 8. ]
corn) and shall pay (to the owner) the price (of stolen corn)¹
'A kumbha' is equal to twenty prasthas. The same author (Manu
VIII. 323) says :
For stealing the principal among precious stones (the thief) deserves
corporal punishment.²
Nārada (p. 227 v. 27=Manu VIII. 321) says
For stealing more than one hundred palas of gold, silver and the like
or for stealing the finest clothes or all precious gems corporal punish-
ment (shall be inflicted).
Manu (VIII 321-322) says ·
The cutting of the hand is approved (as the punishment) for the theft
of more than fifty palas of gold, silver and the like or of the finest
clothes; for stealing less (than fifty palas) the king should impose a
fine eleven times as much as the price (of the stolen thing).
Yāj. (II 270) says :
A brāhmaṇa (guilty of theft) should be branded and banished from the
kingdom ³
*Manu (IX. 240) says ·
The first (three) classes, if they undergo (the proper) penance (for
theft), were not to be branded on the forehead by the king but were to be
made to pay the highest amercement ⁴
Yājñavalkya (II 270) also says
The king should make the thief restore the thing stolen (or its price)
and should inflict on him various kinds of corporal punishment.
Nārada (p 205 v. 19) says
Those also who give food and shelter to thieves who run about (to
avoid punishment) and those who being able (to arrest them) allow
them to escape incur the guilt of thieves.⁵
And they are also liable to the same penalty.
Here ends (the section on) theft and robbery

1. Kumbha was a very large measure 'of corn about the exact extent of which there
   was great divergence of opinion Vide notes to V M p 412 The Mit. says that a kumbha
   was equal to 20 droṇas, while Aparārka says it is equal to two droṇas The V R says it is
   equal to twenty prasthas Mayūkha follows this According to some, twelve prasṛtis made
   a kudava, 4 kudavas made a prastha
2. Kullūka explains that 'vadha' may consist in flogging, mutilation or even
   capital punishment according to the status of the person robbed and the robber
   3 The mark to be branded was a dog's foot. Vide Manu IX 237. Vide next verse
   also.
3. For prāyaścittas for theft vide Manu XI 162--168 and Yāj III, 257--258. The text
   of Manu has 'sarvavarṇāḥ' (all classes)
4. Compare Manu IX. 278 and Yāj. II 276.

• P. 238 (text).

260 VYAVAHĀRAMAYUKHA [ S. XVIII 1-5
M. p.144 l. 23-p.145 l. 28
Now begins (the section on) heinous offences
Nārada (p. 202 v 1) says about the nature of sāhasa
Whatever act is performed by force by those who are puffed up with
(the pride of) strength is called sāhasa (a heinous offence), sahas here
means strength¹
Bṛhaspati (p. 359 v 1) says
Homicide theft assault on another mans wife and the two kinds of
pāruṣya (viz. abuse and assault)—these are the four kinds of sāhasa

• Ubhayam means both abuse and assault Nārada (p 203 vv 4-6)
  says
  Destroying fruits roots, water and the like and implements of
  husbandry throwing away or reviling them and trampling upon them—
  this is declared to be sāhasa of the first degree destroying &c. clothes,
  cattle food or drink or household utensils is declared to be middling
  sāhasa taking human life by poison weapons or other means, assault on
  the wife of another and whatever else endangers human life is called
  sāhasa of the highest degree
  Yājñavalkya (II. 273) says
  The king shall cause to be impaled on stakes those who make others
  captive those who (forcibly) carry away horses and elephants and who
  kill others by force
  Bṛhaspati (p. 363 v 30) says
  Those who are openly murderers and those who are secret assassins
  shall be put to death by the king by various modes of execution after find
  ing them out and after confiscating their property
  The same author (Bṛhaspati p. 363 v 31) says
  Where several persons in anger beat a single individual (and kill him)
  that man is declared to be the murderer (and suffers the punishment for
  murder) who strikes (the victim) on a vital part (i e. who gives the fatal
  blow).
  ¶ Kātyāyana says
  One who commences a sāhasa, or aids it, or who gives instructions as to the
  way (in which it may be committed) who gives asylum or furnishes
  weapons or food to evil-doers who advises fighting who incites to the
  destruction of the person (killed) who connives (at the commission of
  an offence) who speaks ill (of the person killed &c) who approves (of
  the offender's act) who though able (to prevent an offence) does not
  forbid it—all these are (practically) perpetrators of the deed (The king)
  should prescribe for them suitable punishments according to the capacity

1. Steya must be distinguished from sāhasa. In the former there is no use of force
   or threat of using it; in sāhasa there is use of force or threat of the use of it.
   P 239 (text) ¶ P 240 (text)

S. XVIII. 5-8
M. p. 145 l. 28-p. 146 l.19 ] HEINOUS OFFENCES 261
of each offender.¹
Nārada (pp. 203-204 vv. 9-10) states a special rule as to the punish-
ment of brāhmanas
This is the law of punishment ordained for all (classes) without distinc-
tion, save only corporal punishment in the case of a brāhmaṇa (offender).
A brāhmaṇa (offender) is not liable to corporal punishment (such as mu-
tilation, death). The punishment for him (brāhmaṇa offender) is shaving
of the head, banishment from the city, branding him on the forehead with
the mark appropriate to the crime and marching him (through the
streets) on an ass.²
A brāhmaṇa, even though an ātatāyin (a felon or desperate character)
was not to be killed, since Sumantu says 'there is no sin in putting to death
an ātatāyin, except cows and a brāhmaṇa.'³ Kātyāyana says
According to Bhṛgu there shall be no (punishment of) death in the case
of a felon, who belongs to the highest class and who is endowed with
austerities and study of the Vedas and that (the punishment of) death (is
prescribed) for a sinner of a lower class (than a brāhmaṇa).
*The same author says.
' He who makes ready a sword, poison or fire (for perpetrating a crime),
also one who raises his hand for an imprecation, who kills by the (recita-
tion of) incantations contained in the Atharvaveda, who is an informer
of the king (whereby another man may lose his life), who assaults
(or violates) another's wife, who is intent on picking out the weakest
points (of others)—all these and the like should be known as ātatāyins⁴
Vasiṣṭha (III 16) also says
An incendiary, a poisoner, one armed with a weapon, one who robs
another of his wealth, one who snatches away another's field and wife-
these six are ātatāyins.
As to what Manu (VIII 350) says
One may certainly kill without hesitation a man who comes upon him
as an ātatāyin, whether he be a teacher or a child or an old man or a
learned brāhmaṇa'
and as for the text of Kātyāyana (same as Vasiṣṭha III 17)
'one may go on to kill another who approaches as an ātatāyin (i e.

1. 'Who connives'—This man is not able to prevent the offence, but he does not
   raise even a vain protest nor does he inform others of the intended sāhasa
   2 As to absence of corporal punishment for a brāhmaṇa, compare Gautama XII 48,
   Manu VIII 379--380, Baud. Dh S I 10 17 As to the marks branded for the several sins,
   vide Manu IX 237 and Baud Dh. S I 10 18 For the several punishments appropriate to a
   brāhmaṇa offender vide Baud Dh S I 10 18, Gautama XII 44 and Manu VIII. 379-380.
   3 The text of Sumantu is variously read and interpreted Vide Vīr p 22
2. 'Ātatāyin' literally means 'one who goes with his bow strung' (i. e ready to
   fight). Rudra is called ātatāyin in Vāj S 16 18 and Kāṭhaka S. 17 12 Atharvaveda I,
   19, II 19, III. 1 and 2, VII. 108 were employed as charms against enemies,

• P. 241 (text).

262 VYAVAHĀRAMAYŪKHA [ S. XVIII. 8-9
M. p. 146 l. 19-p. 147 l. 2
with a felonious intent) eve if he be one who has thoroughly master-
ed the Vedas, thereby he does not incur the sin of brāhmaṇa murder
these (two texts) are (really) meant to apply to an ātatāyin who is not
a brāhmaṇa as the use of the word 'api (even) and vā shows¹. The
reference to the brāhmaṇa is in the nature of an a fortiori argument² as
in even a brāhmaṇa if an ātatāyin may be killed what then of another
This is the explanation given in the Mitākṣarā,³ since Gālava says:
"He who kills even a learned brāhmaṇa⁴ who approaches as an ātatāyin
raising his weapon (to strike) does not become the murderer of a learned
brāhmaṇa he would be so if he did not kill him
and since Bṛhaspati says
He who kills a brāhmaṇa felon versed in the Vedas and born of a good
family does not commit a brāhmaṇa murder he would be guilty of
of brāhmaṇa murder if he did not kill him
The conclusion of the Candrikā (i. e. Smṛti-candrikā) is that even
a brāhmaṇa felon coming to kill a man is by all means to be slain
that a brāhmaṇa who steals one's field wife or the like (and is
therefore a felon) is not to be killed that a kṣatriya and the rest
in similar circumstances (i e. stealing a field or a wife) are to be
killed And this conclusion (of the Candrikā) is proper⁵ since the
texts of Manu, Kātyāyana, Gālava and Bṛhaspati referring as they
1 These two verses very much exercised the minds of ancient writers. Manu XI. 89
lays down that there is no expiation if one intentionally kills a brāhmaṇa and in Manu IV
162 there is an injunction not to kill one's guru, parents, brāhmaṇas and cows. Therefore
Manu VIII 350 if literally taken as a vidhi would conflict with Manu IV 162 and XI. 89.
But really Manu VIII. 350 is an arthavāda In Manu VIII. 348-349 it is said that anyone of
the first three classes may take up arms when there is hindrance to dharma or in self-defence
or for protecting women and brāhmaṇas and that if he kills anyone while doing this there is
no sin incurred. Then 350 says that one may kill an ātatāyin whether he be a guru etc. So
these words do not contain a vidhi saying that guru must be killed when he is an ātatāyin
These words only convey that even a guru may have to be killed, what of others? Such
particles as vai (in the Vedas) or vā are indicative of an arthavāda (a laudatory or
condemnatory text) Vide Jaimini I 2. 7 and 26-27 Vide notes to V M. pp. 416-419
for detailed explanation.
2. Kaimutika is derived from the words kim-uta kaimutika nyāya is a maxim
used where a conclusion will a fortiori follow as regards certain matters when it is con-
ceded that it does follow in certain other less important or less obvious matters.
3. The conclusion of the Mit. is stated on Yāj. II 21.
4 Bhrūṇa ordinarily means a child in the womb but bhrūṇa in Gālava is
explained by Sm C. as brāhmaṇa and by the Vīr an excellent brāhmaṇa According to
the Baudhāyana Gṛhya a a bhrūṇa is one who knows the whole Vedic lore of his śākhā
up to sūtra and pravacana.
5. Vide notes to V M. pp. 419-420 for the views of the Smṛti-candrikā. Nīlakaṇṭha
approves of the three propositions of the Candrikā, but as will be seen a little lower down he
adds a qualification to the first proposition of the Candrikā viz. that though an ātatāyī
brāhmaṇa may be killed, that holds good as regards past ages, but in the present Kali age
an ātatāyī brāhmaṇa cannot be killed even in self-defence. In his Nīti mayūkha Nīlakaṇṭha
approves of the three propositions of the Candrikā without qualification.
P. 212 (text)

$\left.{l}S. XVIII 10-12
M. p. 117 ll. 3-81\right]$ HEINOUS OFFENCES 263
do to a particular felon viz one who is intent upon a killing a person, it
is right to hold that they are (in the nature of) exceptions to the previ-
ously cited texts of Sumantu and Kātyāyana that are in the nature of
a general proposition (about felons)¹ As for the text of Bṛhaspati
he, who will not kill a felon of the highest class that is endowed with
the best religious conduct and Vedic study, though he deserves death, shall
acquire the merit (of the performance) of a horse sacrifice,
that too has reference to a felon other than one intent upon killing that
man Moreover by the text 'excellent brāhmaṇas even though felons
should not be killed (even) in a fight that is just (or approved by the
śāstras)' the slaying of a brāhmaṇa felon intent upon killing another is
forbidden. This prohibition (about killing an ātatāyī brāhmaṇa) in the Kali age
would be unmeaning if it (killing an ātatāyī brāhmaṇa) were not enjoined as
an act to be done.² For all digests (on dharmaśāstra) establish that the
prohibition of certain acts in the Kali age fell within the purview of enjoin-
ed acts (as regards former ages) on account of the proper significance of
the word dharma occurring in the text 'the wise declare that these dharmas
(enjoined acts) are to be avoided in the Kali age' Therefore in the Kali
age a felonious brāhmaṇa even though intent upon killing a person should
not be killed (even in self-defence by that man), but in other ages he was
certainly (allowed) to be *killed; however a felonious brāhmaṇa different
from the preceding (i e. one not coming to kill) was not to be killed
(i. e killing him was forbidden) in all ages, while all felons whatever of the
kṣatriya and other classes are liable to be killed in all ages. This is a bare
outline (of the subject)
Bṛhaspati (p. 363 vv. 25-28) declares the punishments for seizing articles
of the lowest, middling or best kinds
One who destroys or steals implements of husbandry, flowers, roots and
fruits shall be fined a hundred or more (up to two hundred) according
(to the nature of the property) One who destroys or steals cattle, clothes,
food, drink, household utensils should be punished with a fine of two hundred
or more In the case of women, men, cows, gold, precious stones, the pro-
perty of a deity or of a brāhmaṇa or of women and in the case of other
precious things the fine shall be equal to the value (of the thing stolen).

1. The texts of Sumantu and Kātyāyana in general terms say that an ātatāyī
   brāhmaṇa should not be killed, the four texts of Manu and the other sages particularly
   refer to a brāhmaṇa approaching for killing, therefore they restrict or modify the general
   rule The maxim is 'sāmānyam viśesena bādhyate' (a general proposition is modified or
   restricted by a particular one).
2. A nisedha only prohibits what would otherwise follow as a matter of course. Vide
   p. 231 n 3 above Since ātatāyibrāhmaṇa-vadha is forbidden in kali along with several
   other matters, all of which are spoken of as dharmas proper in former ages, it follows
   that such a vadha was a dharma in former ages.

• P. 248 (text).

264 VYAVAHĀRAMAYŪKHA [S. XVIII. 12-15
M. p. 147 L. 85-p. 148 l. 8D.
'Or double (the price) shall be inflicted by the king having regard to the
offender, or the thief shall be executed to prevent a repetition (of the
'offence)
Yāuṣeyam means strīdhana the word 'vā (in the last half) is
used in the sense of eva (certainly) Madana says that these texts refer
to the subject of sāhasa (and not to steya) on account of the proper signi-
ficance of the words 'vināśayan (destroying) hartā (a robber)...
Yājñavalkya (II. 231) states the punishment for him who incites a
man to a sāhasa
He who causes the commission of a sāhasa should be made to pay a fine
double (of what the offender himself has to pay) He who causes another
(to commit sāhasa) by saying thus I shall pay shall be made to pay a
fine four times as much.¹
'Dvaiguṇyam and cāturguṇyam mean double or quadruple of what is
imposed as a fine on the actual offender Manu (VIII 378) lays down the fine
for him who by force enjoys a virtuous brāhmaṇa woman
'A brāhmaṇa enjoying a guarded brāhmaṇa woman against her will shall be
fined a thousand paṇas ²
But if the crime be committed by a kṣatriya or the like against such a
brāhmaṇa woman, Bṛhaspati (p 366 v 10) says
(The king) shall confiscate the whole of the wealth of him who forcibly
violates another's wife and having caused his penis and scrotum to be cut
off he shall cause him to be paraded (in the streets) on an ass.
Kāmayet (in Bṛhaspati) means enjoys another's wife As regards
rape of a woman of the same caste by a man of the kṣatriya or other caste
or by persons who are offsprings of an anuloma marriage or offsprings of a
pratiloma marriage Kātyāyana declares the punishment
When a man has forcibly enjoyed a woman (the king) should inflict
death on him since that act is (a grave) transgression of proper conduct
The same author (Kātyāyana) says
When a woman has been enjoyed against her will she shall be kept in
the house well guarded her body being in a slovenly (or dirty) state she
should sleep on the ground and should receive bare maintenance (to keep
body and soul together)³
The same author (Kātyāyana) says
She who has been enjoyed by a man of a lower class is to be abandoned
or may suffer death.
1 I shall pay — this means either a reward to the offender or that he would pay the
fine imposed on the wrongdoer.
2 Guarded means either by her husband or by her own vows of chastity &c
3 This is Bṛ p. 367 v 18
P 214 (text)

S. XVIII 15-XIX 1
M. p. 148 l 32-p 149 l 23 ] HEINOUS OFFENCES 265
'Vadha' it should be understood, was to be effected if she was a con-
senting party.¹ Nārada (p 203 vv 7-8) states the punishment for sāhasa
of the lowest, middling and highest degrees
'The punishment for a sāhasa of the lowest degree must be a hundred
panas at the least in proportion to the act (i e the gravity of the offence),
while for a sāhasa of the middling degree the fine prescribed by those con-
versant with the śāstras is five hundred at least For* sāhasa of the
highest degree a fine of not less than a thousand is ordained (Besides)
death, confiscation of all property, banishment from the town, branding and
amputation of that limb (with which the crime was committed)—these are
declared to be the punishment for sāhasa of the highest degree
The direction (in the smṛtis) to inflict death, mutilation and the like is
addressed to the king and to none else, since he alone has the authority (or
right) to inflict punishment
Thus ends (the section on) sāhasa.
Now begins (the section on) adultery.²
Forcibly enjoying another's wife being a sāhasa, the punishment for
it has already been stated. But as regards the enjoyment of another's
wife of the same caste by fraud Bṛhaspati (p 366 v. 11) says
When a man enjoys a woman by fraud his punishment will be the con-
fiscation of his entire wealth and he shall then be branded with the mark
of the female private parts and be banished from the town.
'Sarvaharaḥ' means 'that which takes away the entire property.'
This punishment applies in the case of a woman of the same caste; in the
case of a woman of a lower caste, (the punishment is) half of this, in the case
of a woman of a higher class (than the adulterer), it is death. And similarly
the same author (Bṛhaspati p 366 v 12) says
Half of that punishment that is prescribed for (adultery) in the case
of a woman of the same caste is imposed, when the woman is of a lower
caste: but for connection with a woman of a higher caste, the punishment
for the male is death.³

1. If she consented to her being enjoyed by a man of low caste. It is also possible to
   take it in the sense 'if she consented to submit to death'
   2 Vide Rahi v. Govind 1 Bom. 97 at p. 116 where it is said after referring to the
   Mayūkha that adultery was regarded and punished as a crime of a grave character.
   3 This verse prescribes punishment for the male, but says nothing about the woman.

• P. 245 (text)
  V. M. 34

266 VYAVAHĀRAMAYŪKHA [ S. XIX. 2-6
M. p. 149 l.24-p. 150 l.12
The same author ( Bṛhaspati p 866 v 9 ) prescribes the punishment
for the three kinds of adultery viz lowest middling and highest :
For these three ( gradations of adultery ) the first middling and highest
fines shall be inflicted respectively even higher fine may be awarded if
( enjoyment is had ) forcibly in a lonely place¹
•Manu ( VIII. 354 ) lays down the punishment for a vicious man having
a talk with the wife of another man
If a man engages himself in a conversation with the wife of another
when he had already been accused of ( similar ) offences ( with regard to
her ) he shall undergo the first amercement ²
In regard to conversation between a man and woman who have been
both forbidden ( to talk ) by their parents and the like Yājñavalkya ( II 285 )
says
A woman ( talking ) after being forbidden should be fined a hundred
paṇas while the man should be fined two hundred when there is prohibi-
tion ( addressed ) to both the punishment for both is the same as in
adultery
The first half of the verse refers to prohibition ( addressed ) to each
separately while the latter half to prohibition addressed to both Yājñavalkya
( II. 286 ) states the punishment for intercourse brought about by mutual
desire
When ( the adultery is ) between members of the same caste the
highest amercement is the penalty for an anuloma intercourse (adultery
with a woman of a lower caste ) the middling amercement ( is the penalty )
but for pratiloma intercourse (adultery with a woman of a higher caste )
death ( is the penalty ) for the male and the lopping off of the ears and other
limbs in the case of the woman ³
Kātyāyana says
In the case of all offences women should pay half of the monetary punish-
ment which is prescribed for a male, when ( the punishment ) for the male
is death, ( the punishment for women ) would be cutting off a limb
With regard to intercourse with a brāhmaṇa woman leading a loose life
Manu ( VIII 378 ) says
He would be liable to a fine of five hundred for intercourse with a
consenting woman.
1 The threefold grades of adultery are made as regards anurāga ( vide Bṛ p 865
vv 2, 5-8 ) Therefore the fourth quarter as read in the text is irrelevant and the reading
+draviṇādhike of Aparārka and others is better It means higher fine may be inflicted
on a rich man.
2, But there was no objection to talk with another's wife for a reasonable cause and
if there had been no previous charge. Vide Manu VIII 355.
3, The Mit. construes this verse differently Vide notes to V M. pp. 426-427
P 246 ( text )

S. XIX. 6-7.
M. p.150 l. 12-p. 151 l. 8 ] ADULTERY ' 267
*This refers to a woman of the same caste The same author (Manu VIII.
385) says as regards anuloma intercourse with women of loose character:
A brāhmaṇa having intercourse with a kṣatriya or vaiśya woman who
is unguarded or with a śūdra woman should be fined five hundred panas
and a thousand panas if he has intercourse with a woman of the antyaja
class.¹
As to the text of Manu (VIII 383) 'a brāhmaṇa should be made to pay
a fine of a hundred panas, if he has intercourse with guarded women of the
two classes (kṣatriya or vaiśya),' it refers to a chaste woman. Manu
(VIII. 374) declares the punishment of a śūdra for intercourse with a woman
of a higher caste :
A śūdra having intercourse with a woman of the twice-born classes
whether guarded or not shall lose the (offending) limb and his whole estate
when the woman is unguarded and loses everything (including life) if the
woman is guarded.
The meaning is. a śūdra having intercourse with an unguarded woman
of the twice-born class is liable to have his penis cut off and all his property
confiscated, but if he has intercourse with a guarded woman he incurs the
confiscation of all his property and death. Gautama (XII. 2-3) says 'for
adultery with the wife of the preceptor, the man's penis will be cut off and
his whole property will be confiscated, and if the woman be guarded, there
is the additional (penalty of) death.' Manu (VIII 376) says
'When a kṣatriya and vaiśya have sexual intercourse with a brāhmaṇa
woman, who is unguarded, the vaiśya shall be fined five hundred, but the
kṣatriya one thousand.²
The same author (VIII 377) says
✝Both of them (kṣatriya and vaiśya) however, if they commit adultery
with a guarded brāhmaṇa woman, should be punished like a śūdra³ or be
burnt in a fire of dry grass.
The same author (Manu VIII 382) says :
If a vaiśya has intercourse with a guarded woman of the kṣatriya class
or a kṣatriya has intercourse with a vaiśya woman (who is guarded), both
of them deserve the same punishment that is awarded (for intercourse)
with an unguarded brāhmaṇa woman.
The meaning is that the fine is what is inflicted for intercourse with an
unguarded brāhmaṇa woman Vasiṣṭha (21. 3--5) says 'if a kṣatriya has inter-
course with a brāhmaṇa woman, (the king) shall throw him into fire after'

1. Antyaja woman would be a woman of the untouchable classes such as leather
   workers, cāṇḍālas &c Vide notes to V M p 27
2. Read 'yadāguptāṁ' (yadā+aguptāṁ) in the text.
3. i e. with the loss of the penis, all property and life.

• P. 247 (text). ✝ P. 248 (text).

268 VYAVAHĀRAMAYŪKHA [ S. XIX. 7 11. , 1 ,
M. p. 151 l. 2-p. 152 l. 6
having tied him up in leaves of sara grass the same (punishment should be
awarded) if a vaiśya has intercourse with a kṣatriya woman and a śūdra,
with kṣatriya or vaiśya woman. Nārada (p 179-180 vv 73-75) says
The mother the mother's sister mother-in-law maternal uncle's
wife, father's sister the wife of a paternal uncle, of a friend and of a
pupil the sister sister's friend daughter-in-law daughter the wife
of a preceptor a woman of the same gotra a woman who has come
for an asylum or refuge, a queen, a female ascetic a nurse any chaste
woman and a female of the highest caste—when a man has intercourse
with any one of these women he is said to have violated the preceptor's
bed for such a crime no punishment other than excision of the penis is,
ordained (in the smṛtis)¹
Yājñavalkya (III 232-233) also says
One who has intercourse with his father's or mother's sister maternal
uncle's wife or his own daughter-in-law or with his step-mother or
sister or his preceptor's wife, or daughter with his own daughter be-
comes a violater of the preceptor's bed His penis should be cut off and
he should be put to death and the woman also (should be put to death)
if she was full of lust (i e a consenting party)
*This punishment is not to be inflicted on a brāhmaṇa, since Bṛhaspati
in his section on brāhmaṇas says
The king should brand with painful punishments a brāhmaṇa who has
started on the path of having intercourse with another's wife and should
banish him One not a brāhmaṇa deserves for adultery any punishment up
to death.
Śaṅkha-Likhita say 'with whatever member of the body an offender
commits an offence that very member of his should be cut off except in the
case of a brāhmaṇa Yājñavalkya (II 290) declares the punishment for a
brāhmaṇa when he has intercourse with a female slave and the like
A man having intercourse with avaruddhā slaves and bhujiṣyās shall
be made to pay a fine of fifty paṇas even when intercourse with them
may be unobjectionable (on the ground of caste &c.).²
Avaruddhāḥ are those that are forbidden by their master to have
intercourse with other men. Nārada (pp 180-81 vv 78-79) says

1. The V R says that mother means step-mother here. It is to be noted that
   intercourse with a female ascetic is put by Nārada on a par with incest. Manu VIII 363
   treats it on a level with intercourse with wives of actors and singers and punishes it lightly
   Vide also Yāj. II. 293 quoted at the end of the section on adultery
2. The text of Yāj. and the Mayūkha thereon are quoted in 48 Cal. 643 I. R. at p. 651
   and in Yeshwantrao v Kashibai 12 Bom 25 at p. 29 n 5. Vide also Muthura v. Esu 4 Bom
   545 at pp. 549-50 According to the Mit. an avaruddhā is one who is ordered by her master
   to stay at home for service and who is forbidden to have intercourse with other males
   while a bhujiṣyā is a concubine kept by the master himself. Vide Bai Nagubai v Bai
   Monghibai L. R. 53 I A. 153=50 Bom 601 at p. 612 for the meaning of avaruddhā.
   P. 210 (text)

S. XIX. 11-13 ] ADULTERY 269
M. p. 152 ll 7 30 ]
Intercourse is permitted with a wanton woman who belongs to another
than the brāhmaṇa caste, or with a prostitute, a female slave or a female
who has left her family, if these belong to a lower caste; but intercourse
is not permitted with (such) women if they belong to a higher caste.
When, however, such women are kept mistresses (of another man) inter-
course with them is as culpable as with another's wife ¹
The word 'abrāhmaṇī' is an attribute of the word 'svairiṇī'; svairiṇī
means 'one who is independent and has free intercourse with men'; 'niṣ-
kāsinī' is 'a woman who has left her family and has free intercourse with
men.' Yājñavalkya (II. 291) says
If a man has connection with an antyā (untouchable) woman he should
be branded with an obscene mark and banished, similarly a śūdra is
liable to be branded only if he does the same, but if an antya (untouch-
able) have intercourse with an āryā woman death (is the penalty).²
'When the sexual intercourse is wilfully brought about by a woman,
(she being the aggressor) Nārada³ states the punishment for her :
When a woman comes to a man's house and has intercourse with him
after exciting his passion by touching him and the like acts, she should be
punished⁴ and half of her punishment should be inflicted on the man.
Yama prescribes the punishment for women of the brāhmaṇa and other
castes for intercourse with śūdra males or the like :
The king should have that woman devoured by dogs at the place of
the executioners (cāṇḍālas), who, being overpowered by passion, seeks
a śūdra (for intercourse)⁵ That brāhmaṇa woman who resorts to a
vaiśya or kṣatriya (for intercourse) would have her head shaved and shall
be marched on an ass (through the streets)
'Vṛṣala' means 'a śūdra', 'vadhyaghātināḥ' means 'executioners';
the meaning is 'at the place where executioners live'. In the Candrikā
(Smṛti-candrikā) it is said that this fine is inflicted for excessive attachment
(to the paramour) Yājñavalkya (II 283) declares the means of determin-
ing (the fact of) adultery :
A man is to be held (caught) as guilty of adultery by the fact of his
caressing the hair of another's wife or by fresh signs of lust or by the con-
fession of both

1. 'Niṣkāsinī' is explained as 'a female slave not restrained by her master' by
   Mādhavācārya and others The Mayūkha follows the Madanaratna.
2. 'Āryā' woman means 'a woman belonging to the three higher castes' Āp Dh. S
   II. 2. 3. 1 and 4 distinguishes between Ārya and Śūdra The Mit and Vir. read
   'antya eva' which means that the śūdra would himself become an antyaja. The force of
   'eva' is this that he is not liable to be punished.
3. This is Br p 367 v 15
4. Her punishment would be the same as is prescribed for a male who makes the first
   overtures.
   5 Compare Gautama XXIII, 14 and Manu VIII, 371.

• P. 250 (text)