History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v1.c6.s14.29
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v1.c6.s14.29
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Kauṭilya allows *niyoga* even in the case of Brāhmaṇas (last verse of III. 6 and at the end of I. 17 about kings). Manu first speaks of Niyoga and then condemns it (vide 9. 57-63 and 9. 64-68). As Bṛhaspati refers to this fact in Manu's work,¹⁷² it appears that the passages condemning *niyoga* were put in probably earlier than the fitst centuries of the Christian era. Though Kauṭilya speaks of almost the same 18 titles as those in Manu (8. 4-7) almost under the same names, there is a slight difference. Manu has no such title as *Prakīrṇaka*. Kauṭilya speaks of upanidhi and extends the same rules to Nikṣepa, while Manu speaks of the title as Nikṣepa. The ancient dharma-sūtras do not give the technical names of the eighteen titles of law, though some of them do occur therein. Vākpāruṣya and daṇḍapāruṣya occur in G. Dh. S. (12. 1) and Vas. (17.61). Baud. seems to have known the term 'Strīsaṅgrahaṇa' (Dh. S. II. 2.54). *Steya* occurs in all. Gautama speaks of *nidhi* (Dh. S. 12. 39). Manu positively says (9. 155) that the son of any member of the first three *varṇas* from a Śūdra woman does not inherit his father's wealth (though the preceding verses 151-154 seem to lay down different rules), while Kauṭilya allows such a son a share when there are sons born to a Brāhmaṇa from wives of higher castes or one third when he has no other sons (III. 6). Manu expressly mentions the mother and paternal grandmother as heirs (9. 217), while Kauṭilya appears to ignore them.
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Manu prohibits the remarriage of widows (V. 161-165), while Kauṭilya allows not only widows to remarry, but also wives whose husbands have not been heard of for a year or more according to circumstances (III. 4). Kauṭilya allows a wife to desert her husband, if the latter is of a bad character, has become a traitor to the king, endangers her life or has become an outcaste or impotent¹⁷³ (last verse of III. 2). Kauṭilya further seems to have allowed divorce which is unknown to any other known lawgiver, but he bases it only on the ground of mutual hatred and says that a marriage in the approved forms cannot be dissolved¹⁷⁴ (III. 3). Manu is very harsh upon gamblers and asks the king to supress gambling and banish gamblers (9. 221-224), while Kauṭilya only brings gambling under the control of the king for the purpose of detecting thieves &c. (III. 20). Manu first allows a Brāhmaṇa to marry even a Sūdra woman and then condemns such a thing (III. 13-19), while Kauṭilya does not condemn such unions. These divergences and others lead us to conclude that the Kauṭilīya is much older than the extant Manusmṛti, which is in many matters carried away by puritanic zeal, while its older portion is more in harmony with the spirit of the Kauṭilīya. Therefore the Kauṭilīya is long anterior to the time when the extant Manusmṛti took its present form. The Kauṭilīya refers to the opinion of the Mānavas in five places.
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Two of the views ascribed to the Mānavas by Kauṭilya are the sama as those which Kāmandaka (II. 3 and XI. 67) ascribes to Manu. According to the Mānavas, the *vidyas* to be studied by a prince were three, viz. trayī, vārtā and daṇḍanīti, what is called ānvīkṣikī being but a branch of trayī; and the council of ministers was to consist of twelve. The Manusmṛti (7. 43) appears to regard the *vidyās* as four and lays down (7. 54) that the Council should consist of seven or eight *sacivas*. Bühler and others on account of this difference in the views of the Mānavas and the Manusmṛti thought that Kauṭilya was referring to the Mānvadharmasūtra. In my humble opinion the evidence for the existence of a Mānavadharmasūtra is practically nil, as detailed above in section 13. From the references to Svāyambhuva Manu and Prācetasa Manu contained in the Mahābhārata, particularly in the Śānti and Anuśāsana *parvans* it appears that there were two works in verse on *dharma* and politics attributed to these two or there was one work containing both. These works were subsequently recast as the Manusmṛti. It is therefore that some difference is noticed between the views ascribed to the Mānavas and the extant Manusmṛti. Besides there is no real conflict in the matter of *vidyās*. The Manusmṛti does not positively say that the *vidyas* are four and not three; it simply says from whom trayī and the other three are to be learnt. The Manusmṛti (in 7. 60) allows more ministers than seven or eight.
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It is possible that in recasting several changes were made. The third opinion of the Mānavas quoted by Kauṭilya is about the fine to be imposed upon officers of the state occasioning loss of revenue (II. 7). The other two views of the Mānavas quoted are concerned with the fine to be imposed on false witnesses and for forcible seizure of jewels¹⁷⁵ &c. It must be admitted that in the extant Manusmṛti there is nothing exactly corresponding with these views. But from this fact no one conclusion alone can be drawn. There may be a mistake in quoting, or there may be interpolations, it may be that some of the verses in the original Manusmṛti have dropped out or that Kauṭilya is quoting not the Manusmṛti itself, but the views of works based on or explanatory of Manu. It is noteworthy that Bṛhaspati¹⁷⁶ contains a verse very similar to the views on sāhasa attributed to the Mānavas. We shall see below that Bṛhaspati's work was more or less a supplement of Manu. The only authors or schools, besides the Mānavas, cited by name in the dharmasthīya section are the Bārhaspatyas and the Auśanasas. It is remarkable that the well-known and ancient Dharmasūtrakāras like Gautama, Āpastamba, Baudhāyana, Vasiṣṭha, Hārīta are nowhere quoted by name. It is noteworthy that in the dharmasthīya section Kauṭilya several times quotes the views of ācāryas and of some others under the word "apare". Some of these views correspond closely with the discussions in the ancient dharmasūtras.
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One of these is the question as to whom the child belongs, to the begetter or to him on whose wife it is begotten. Kauṭilya first quotes the view of the ācāryas that it belongs to the husband of the mother of the child, then says that some hold that it belongs to the begetter, while Kauṭilya holds that it belongs to both.¹⁷⁷ It is to be noted here that both Baud. and Āp. say that according to the Brāhmaṇas the sons belong to the begetter, while Vasiṣṭha says there is a dispute on the point, both views being supported by ancient authorities. Gautama speaks of both views and at last (18. 23 "dvayorvā") seems to come to the same conclusion as Kauṭilya. It is not unlikely that Kauṭilya has in mind this discussion in the Dharmasūtras and also in Manu (9. 48-54 where the view is that the child belongs to the husband of the woman). Some of the other views attributed to ācāryas are that a woman could visit the houses of her husband's relations, of prosperous men, of village headmen, of female ascetics &c. (III. 4); that very poor men could divide even waterpots at a partition (III. 5); that the master who did not employ a servant ready to work according to agreement had to pay the wages agreed upon as if the work had been finished (compare Viṣṇu V. 157); he who forcibly confined a man or woman or who by force released another from imprisonment was to be fined between 500 and 1000 (III. 17);
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that disputes of a remote date shall not be complained of and that he who is the first to complain wins, since one runs (to court) as one cannot bear the pain (III. 19); that in a complaint by one gambler against another, the successful party has to pay the fine called pūrvasāhasa and the defeated party the fine called madhyasāhasa (III. 20).