History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v2.c26.121
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v2.c26.121
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v2.c26.121.1
The rules about prohibition of marriage on the ground of sapiṇḍa relationship, particularly where cognates (persons connected through females) were concerned, have not been observed in numerous instances over wide areas from very ancient times. One striking illustration is the question whether a man can marry his maternal uncle's or his paternal aunt's daughter, particularly the former. On this point opinion has been sharply divided from ancient times. Āp. Dh. S. I. 7. 21. 8 includes among *patanīya* actions (mortal sins) sexual intercourse with the uterine relations (mothers and sisters) of one's parents and their children. This would prohibit marriage with one's maternal uncle's or paternal aunt's daughter. Baud. Dh. S. I.¹⁰⁸⁰ 1. 19-26 notes that there were five practices peculiar to the south viz. eating in the company of one whose upanayana has not been performed, to eat in the company of one's wife, to eat stale food, to marry the daughter of the maternal uncle or of a paternal aunt and there were five practices peculiar to the north. Then he proceeds to state the argument that those who follow the practices mentioned by him in countries other than those where they prevail incur sin, that Gautama (XI. 20) holds this last argument to be wrong and then Baud. states his own view that one should pay no heed to either set of practices, as both are opposed to smṛtis and the views of śiṣṭas.
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From this it is clear that a marriage with one's maternal uncle's daughter or paternal aunt's daughter was in vogue in the south (below the Narmadā probably) long before the Baud. Dh. S. (i. e. several centuries before the Christian era) and that North India did not go in for such marriages and that orthodox sūtra writers like Gautama and Baudhāyana reprobated such practices. Manu (XI. 172-173) forbids such marriages "on approaching (for carnal intercourse) the daughter of one's father's sister or of one's mother's sister or of mother's full brother, a man must undergo the penance called 'cāndrāyaṇa'. A wise man should not take as his wife (any one of) these; they are not fit to be wedded because they are (sapiṇḍa) relatives, for by wedding them one sinks low (i. e. falls into hell or loses caste)". Haradatta on Āp. Dh. S. II. 5. 11. 16 quotes a verse from Śātātapa¹⁰⁸¹ prescribing the penance of *cāndrāyaṇa* for marrying one's maternal uncle's daughter or a girl having the same gotra as one's mother's gotra (i. e. maternal grandfather's gotra) or a sapravara girl and a text of Sumantu forbidding marriage with the daughter of the brother of one's mother or step-mother. It would be seen that all these relatives are third from the common ancestor and so are very much within the prohibition against marrying a sapiṇḍa, whatever be the number of prohibited degrees for marriage that are accepted.
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Kumārila in his Tantravārtika while discussing the scope and validity of *sadācāra* (on Jaimini I. 3. 7) enumerates many lapses from good conduct attributed to great men and heroes of the past and tries to explain away those violations of good conduct. The charge brought against Vāsudeva (Kṛṣṇa) and Arjuna, the central heroes of the Mahābhārata, is that they respectively married Rukmiṇī and Subhadrā who were their maternal uncle's daughters (this being forbidden). Kumārila makes very scathing remarks against this practice¹⁰⁸² prevalent among southerners and then refutes this charge by saying that although in the Mahābhārata (Ādiparva 219. 17-18) Subhadrā is described as the daughter of Vasudeva and sister¹⁰⁸³ of Kṛṣṇa, she was really not so, but that she was Vāsudeva's mother's sister's daughter or was the daughter's daughter of the sister of the father of Vāsudeva's mother (or step-mother Rohiṇī).¹⁰⁸⁴ Kumārila argues that such female cousins one degree or several degrees removed are often spoken of as sisters. Vide my notes to the Vyavahāramayūkha pp. 200-202 where this matter is fully explained. This reply of Kumārila well illustrates the method of dealing with inconvenient texts adopted by mīmāṁsakas like Kumārila when the texts run counter to their cherished views. Viśvarūpa on Yāj. III. 254 quotes Manu XI. 172 and verses of Saṁvarta prescribing the penance of *Parāka* for carnal intercourse with one's maternal uncle's daughter.¹⁰⁸⁵ Medhātithi on Manu II.
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18 refers to this practice as prevalent in some countries, and says it is opposed to the rule of Gautama (IV. 3) about prohibition on the ground of sāpiṇḍya and explains how such practices might have arisen. Persons making love to the handsome daughters of their maternal uncles married them for fear that they might otherwise be punished by the king; it may be that others literally following the words of Manu IV. 178 held by the practice which their forefathers resorted to for fear of punishment.¹⁰⁸⁶ Among medieval writers, some condemn this practice, others justify it. Aparārka (pp. 82-84) after a lengthy discussion condemns marriage with maternal uncle's daughter. The Nirṇayasindhu also does the same (p. 286).