Manava Dharmashastra 3.34

3.34.1

rākṣasapaiśācayoranicchā tulyā | rākṣase hananaṃ, paiśāce vañcanam | suptāṃ nidrayā'bhibhūtām | mattāṃ kṣībāṃ madyaparavathām | pramattāṃ vātasaṃkṣobheṇa naṣṭacetanām | raho'prakāśamupagacchati maithunadharmaṃ pravartate sa paiśāco vivāhaḥ sarvavivāhānāṃ pāpiṣṭhaḥ pāpahetuḥ | dharmāpatyaṃ na tataḥ saṃpadyate | iha gāndharvarākṣasapaiśācānāṃ prakṛtavivāhasāmānādhikaraṇyātsaṃyogaharaṇopagamā eva pāṇigrahaṇasaṃskāranirapekṣā 'vivāhā' iti manyante | teṣāṃ brāhmādiṣvapi jñānavivāhayoḥ sāmānādhikaraṇyātsaṃskāro vinivartate | yathā ca na nivartate tathā darśitam | lakṣṇayā vivāhaprayojanadāne vivāhaśabdaḥ | gāndharve tu bhagavatā kṛṣṇadvaipāyanena duṣyantaśakuntalāsaṅgame varṇitam “anagnikamamantrakam” iti, taddarśanena pāṇigrahaṇasaṃskāro'sti, mantrādi varjitastu |

When the man approaches the girl by stealth, while she is asleep, or intoxicated or unconscious,—it is the “Paiśāca” form, the wickedest and the basest of marriages.—(34).

Medhātithi’s commentary (manubhāṣya):
The unwillingness of the girl is the condition common to the ‘Rākṣasa’ and the ‘Paiśāca’ forms: the difference is that in the former there is beating, while in the latter there is stealth.

‘Asleep’—overpowered by sleep.

‘Intoxicated’—senseless, under the influence of wine, &c.

‘Unconscious’—who has lost consciousness on account of the disorders of the wind-humour.

‘By stealth’—not openly.

‘Approaches’— has sexual intercourse with.

This is the Paiśāca marriage, of all marriages the ‘wickedest’—the most sinful. That is to say, the issue of such a marriage does not become the rightful child.

In connection with this subject, some people think that the ‘Gāndharva’ form of marriage is accomplished by mere ‘intercourse,’ the ‘Rākṣasa’ by mere ‘abduction’ and the ‘Paiśāca’ by mere ‘approach,’—irrespective of the sacramental rites relating to the ‘taking of the hand’ and the rest. And they base this idea upon the fact that all these three are mentioned in apposition to ‘marriage’ which forms the subject-matter of the context.

But, according to these people, in the ‘Brāhma’ and other forms also, since the ‘giving’ is mentioned in apposition to ‘marriage,’ the sacramental rites would cease (to be necessary factors in the marriage). But we have shown above, how. these rites cannot be omitted. The fact of the matter is that it is only figuratively that the term ‘marriage’ has been applied to that act of ‘giving’ which is done for the purpose of ‘marriage.’

As regards the ‘Gandharva’ form, the revered Kṛṣṇa-dvaipāyana has described it, in connection with the union of Duṣyanta and Śukuntalā, as being ‘without fire and without sacred texts;’ and this shows that there are certain sacramental rites of ‘taking the hand,’ etc., but they are done without sacred texts etc.

3.34.2

paiśāce punarvidante- “mukhyaṃ copagamanam| na ca kanyātvamapaiti, saṃskāraistadvinivartanāt | ataśca ‘pāṇigrahaṇikā mantrāḥ kanyāsveva pratiṣṭhitāḥ' (a0 8 ślo0 226 ) itipratiṣedhasyāpravṛtterastyeva mantravatsaṃskārasambandhaḥ | sa ca pratiṣedhaḥ kutaḥ saṃskārapratiṣedhārthaḥ | sā hi mantraiḥ saṃskṛtatvādvyapagatakanyābhāvā | ata eva bhavatu prathamamupagamastato'kanyyādoṣo nāsti | tathā ca kānīnaḥ karṇa iti darśanam | yadi tu puruṣaprayogeṇa kanyātvamapeyātkatha miyaṃ vācoyuktiḥ ‘kanyāyāḥ putraḥ kānīna' iti | athatvasaṃskṛtā kanyocyate tato yuktam 'karṇādayo hyanūḍhāyāḥ putrā' iti | mukhye'bhyupagamane kanyāyā apatyotpatteḥ sambhavaḥ | varṇyate cetihāsādiṣu tathābhūtāyā vivāhaḥ | 'atha madyamadādinā nirvṛtte ratisambandhe kimarthaḥ saṃskāra iti' | atrocyate | yadyapi• strīpuṃsadharmo nirvṛtto'tikrāntaśca kanyāgamanapratiṣedhastathāpi tayā sahādhikārārthaṃ punaśca gamane kanyāgamanaṃ mā bhūditi tadarthaṃ saṃskārakaraṇam | kanyāgamanapratiṣedhātikramasambandhena puruṣārthatayā'pi ninyate vivāho'yam |” tadyuktam | yato'yaṃ loke kanyāśabdaḥ puṃsā'saṃprayuktāṃ striyamācaṣṭe, na saṃskārabhāvasāpekṣām | akṛtasaṃskārā api puruṣaiḥ kṣatayonayo na ‘kanyā' iti vyavahriyante | tāsāṃ ca veśaśritānāṃ gamane na kanyāgamanadoṣaḥ | yadyapi kumārīkanyāśabdau prathamavayovacanāviṣyete tathāpi vivāhavidhāvanupabhuktapūrvāmeva striyamācakṣate | tathā ca kumāraveśadhāriṇīṃ nātiprakāśapravṛttapuṃsaṃprayogāṃ bhāryātvenārthayamāno'nyairavabodhyate–'naiṣā kumārī naṣṭo'syāḥ kaumāro bhāvaḥ' |

As regards the ‘Paiśāca’ form, there is a difference of opinion:—In this form (it is argued) ‘approaching’ is the prime factor; but that does not deprive the girl of her ‘maidenhood;’ as this can be put an end to only by the sacramental rites attendant upon marriage; so that the girl still continuing to be a ‘maiden,’ the prohibition of rites in connection with ‘non-maidens’—which we find in the statement that ‘the sacred texts relating to marriage are restricted to maidens only’ (8. 226)—does not apply to this form of marriage; and hence its connection with the sacramental rites remains undisturbed. The prohibition just referred to is for the purpose of precluding the sacramental rites (from the case of non-maidens); while the girl married by the ‘Paiśāca’ form has her maidenhood destroyed only when she has gone through the rites. Thus, then, even though the ‘approaching’ may take place first, yet the taint of ‘non-maiden-hood’ does not apply to her. It is only in accordance with this view that Karṇa can be called ‘maiden-born;’ for if mere intercourse with man were to deprive the girl of her maidenhood, how could we have such a statement as ‘the son born of a maiden is called maiden-born.’ If, on the other hand, the name ‘maiden’ be applied only to such girls as have not had the sacramental rites performed for them, then the said statement would be all right, Karṇa and others of his kind, being sons of unmarried girls. It is only if ‘approaching’ be the prime factor that it is possible for a child being born from a ‘maiden.’ In fact, we find in stories the description of the ‘marriage’ of girls who had been previously ‘approached’ by the ‘Paiśāca’ form.

It might be asked—“when sexual intercourse has been already accomplished with the help of intoxicants, etc., what would be the use of the sacramental rites?”

The answer to this is as follows:—Though the act of copulation has been accomplished, and the man. has transgressed the prohibition of intercourse with a ‘maiden,’ yet the performance of the rites is necessary,—firstly, for the purpose of making her entitled to share in the religious acts of her husband, and, secondly, for the purpose of avoiding the sin of repeating the act of having intercourse with a ‘maiden.’ This form of marriage is thus deprecated by reason of its involving a transgression of the prohibition of having intercourse with a maiden, and also because it subserves the purely physical purposes of the man (and not any religious purpose).

The above view, however, is not right; because, in ordinary parlance, the term ‘maiden’ denotes the girl who has had no intercourse with man, and not one for whom the sacramental rites have not been performed. In fact, even though her sacramental rites have not been perforated; if a girl happens to have sexual intercourse with man,-she ceases to be regarded as a ‘maiden;’ and when such girls have taken to the profession of prostitutes, intercourse with them does not involve the sin of having intercourse with a ‘maiden.’ It is true that the words ‘virgin’ and ‘maiden’ have beeu regarded as referring to a female in the earlier years of her age; but, in connection with rules relating to marriage, they are always used in the sense of one who has had ho intercourse with man. It is for this reason that when a man is found to be seeking marriage with a girl who maintains the appearance of a virgin, and does not openly go in for sexual intercourse,—he is warned by people with such words as—‘she is no longer a virgin, her virginhood has been destroyed.’

3.34.3

saṃskāraparilopaśca syāt | garbhādhānaṃ hi mantravatkartavyaṃ “viṣṇuryoniṃ kalpayatu” iti [ ṛgveda 10 | 184 | 1 ] klṛptāyāśca kalpanamaśakyam | tatrāyathārtho mantraprayogaḥ syāt | na cānūḍhāyāḥ paiśācadharme mantraprayogaḥ, uḍhāyāstacchravaṇāt | na ca paiśācavarjamanyeṣu vivāheṣu tatkalpayituṃ yuktamaviśeṣaśravaṇāt | tasmānmukhyoṣagamanapakṣa evamādayo bahavo doṣāḥ prāpnuvanti | ata āliṅgenopagūhanaparicumbanādiṣūpagamanārtheṣu vyāpāreṣu sāhacaryāttādarthyāccopapūrvo gamirdraṣṭavyaḥ | yattu “kānīnaḥ putra” iti tatra mukhyārthāsambhavāllakṣaṇayā saṃskārābhāvapratipattiḥ | yattu saṃskāradarśanaṃ tattu kvacideva | yadyapi ‘yā garbhiṇī saṃskriyate jñātā'jñātā'pi vā satīti’ ( manu 9 | 103 ) tatra ya evopagantā sa eva na saṃskartā | na tvasau paiśāco vivāhaḥ | paiśāce hi yenaiva samupabhuktā tasmā eva dīyate, sa evaināṃ saṃskārotīti | garbhiṇyāstu saṃskāro vācanikaḥ | etacca sarvaṃ nipuṇataraṃ punarnavame vakṣyate | apare manyante | “satyaṃ mukhyamupagamanamamukhyatve tu gamanapratiṣedhānupapattiriti |” yadi hi mukhyamupagamastadā sa eva vivāho'nyasyānantoktena nyāyenābhāvāt | tataśca nāsti tasya pratiṣedhasya viṣayo, yataḥ icchayā gāndharvo haṭhādrākṣaso'nyathā paiśācaḥ | na cānyaḥ prakāro'sti, yena sa viṣayaḥ pratiṣedhasya syāt | asti svasya viṣayaḥ— yatra haṭhādrahasi gamanaṃ, yā vā pitṛbhyāṃ dīyate na copasaṃskriyate | na cāsau gāndharvaḥ, kanyecchāyā abhāvāt | ata eva bharturapi na kanyāgāmitvaṃ, viṣayāntarasya saṃbhavāt |

Further, in the case of marrying such a girl, there would be a serious deficiency in the sacramental rites themselves. E.g., the rite of ‘conception’ has to be done with sacred texts, such as ‘Viṣṇuryoniṅkalpayatu, etc. (Ṛgveda, 10.184. 1),—which means ‘May Viṣṇu generate upon your generative organ;’ and there can be no ‘generation’ (by Viṣṇu) of what has already been generated’ (by another man); so that the use of the sacred text in this case would be meaningless. Nor could, any such text be used when an unmarried girl would be ‘approached’ in the ‘Paiśāca’ form; as it has been definitely declared that it is to be used only in the case of ‘married’ girls. Nor would it be right to hold that the ‘generation’ (spoken of in the said text) refers to the case of marriages other than the ‘Paiśāca;’ for the use of the text has been prescribed without any restriction at all.

The above and several other difficulties crop up if ‘approaching’ is regarded as the principal factor. The term ‘Upagamana,’ ‘approach,’ then, should be taken as standing for the acts of embracing, kissing and such other concomitants of actual ‘intercourse;’—such use of the term being due to the fact that the said acts are concomitants of, and lead up to, the act of ‘intercourse.’ As regards the expression, ‘the maiden-born son,’ inasmuch as the direct meaning of the term ‘maiden’ is not applicable, it is taken in its indirect meaning of ‘one who has not gone through the sacramental rites.’ As for the case where the sacramental rites are performed even after ‘intercourse,’ such cases are very rare. Then, as regards the statement—‘when the sacrament is performed for a pregnant girl, with or without the knowledge of her being so, etc.’ (9. 173),—this refers to cases where the person performing the sacramental rites is not the same that has had the previous intercourse with her; so that this would not be a case of ‘Paiśāca’ marriage at all; as in this latter, the girl is given in marriage to that same person who has had intercourse with her (during sleep, etc.), and that same person would be performing the rites for her. Then again, so far as the performance of rites for the pregnant girl is concerned, it has been directly laid down by scriptural texts. All this we shall explain in full detail under Discourse IX.

Others, again, have held the view that—“in reality, the intercourse itself is the principal factor; for, if it were not so, there would be no point in the prohibiting of intercourse (with maidens).”

But if ‘intercourse’ were the principal factor, then that itself would constitute ‘marriage;’ none other being possible, according to the reasoning just put forward; so that there would be no object for the prohibition, as ‘intercourse,’ when voluntary, would constitute the ‘Gāndharva’ marriage; when ‘forcible,’ it would be ‘Rākṣasa’ marriage; and in other cases it would be ‘Paiśāca;’ and no other ‘intercourse,’ without rites is possible, whereby the prohibition could apply to all forms of ‘intercourse.’ As a matter of fact, however, there certainly is an object for the prohibition,—in the shape of such cases where there is forcible intercourse by stealth, or where the girl is given away by her parents, but no sacramental rites are performed. This latter cannot come under the ‘Gāndharva’ marriage; as it is not ‘voluntary’ on the part of the girl. It is for this reason that in such a case the husband does not incur the sin of having intercourse with a ‘maiden;’ as this latter contingency happens under totally different circumstances.

3.34.4

tasmātkṣatayonyāḥ saṃskāraniṣedhādbrāhmādivadupāyatavāttadrūkca vivāhaśabdopapatteḥ prakaraṇasāmarthyādrauṣa evopagamārthaḥ | eṣāṃ ca bhedaḥ | aprārthitopanato bhūmihiraṇyādivadbrāhmaḥ | ṛtvikatvena viśeṣeṣu daivaḥ | gomithunenārṣaḥ | yācñayā'yācñayā vā ‘sahaubhau caratāṃ dharmamiti’ vacanavyavasthayā prājāpatyaḥ | śeṣāḥ subodhabhedāḥ | brāhmādīnāmidamarthe taddhitaḥ | brahmādisambandhitā ca stutyā''ropyate | evaṃ sarveṣu | paiśācaḥ, ‘piśācānāmayaṃ yukta’ iti nindāṃ |

Thus, then, since the performance of sacramental rites has been interdicted in the case of girls who have already had sexual intercourse,—and since the ‘Paiśāca’ also is, like the ‘Brāhma’ and the rest, a means (of acquiring a wife),—and since, therefore, this form also is capable of being culled ‘marriage,’—it follows that what is denoted by the term ‘approach,’ ‘upagama’ (‘intercourse’) is only a secondary factor.

The differentiating characteristics of the eight forms of marriage are as follows (1) that marriage which comes without asking, just like landed property, gold and the rest, is ‘Brāhma;’ (2) that which comes by virtue of one’s priestly character is ‘Daiva;’ (3) that which is accompanied by the present of a cow and a bull is ‘Ārṣa;’ (4) that which is accompanied by the condition, ‘may you together perform your duties,’ and which comes either by or without asking, is ‘Prājāpatya;’ the characteristics of the others are easily discerned.

In the words, ‘Brāhma,’ etc., the nominal affix denotes relation; and the relationship of Brahma and the rest is ascribed to the marriage, with a view to eulogising it. So also in the rest. In the case of the term ‘Paiśāca,’ the meaning is ‘that which is fit for Piśācas,’ and it connotes deprecation.—(34).