Manava Dharmashastra 3.34.2

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.’