Manava Dharmashastra 3.34.3

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.