History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v2.c26.365

v2.c26.365

It is not to be supposed that when ancient sages held that rākṣasa and paiśāca were forms of marriage, they legalized marriage by capture or stealth. What they meant was that these were the means of securing¹²¹⁰ wives and that there are not really eight kinds of *vivāhas*, but rather there are eight ways in which wives may be secured. It is for this reason that Vatsa says that if a fine girl cannot be secured by any means she may be approached even in private by stealth and married. The sages condemned in no measured terms the paiśāca. From the fact that Āpastamba and Vasiṣṭha both ignore the Paiśāca and Prājāpatya it may be inferred that these two had ceased to be recognised by their time and that the other sages enumerated them only because they appeared in ancient works and for the sake of completeness of treatment. Vasiṣṭha (17. 73) expressly repudiates the idea that legal wifehood can arise by forcible seizure of a girl 'if a damsel¹²¹¹ has been abducted by force and not wedded with sacred texts she may lawfully be given to another man (in marriage); she is just as good as a maiden'. The smṛtis out of regard for the future welfare of the girl preferred to blink at the wrong done, but insisted upon the abductor or stealthy seducer performing the rites of *homa* and *saptapadī* in order to confer on the girl wronged the status of a legally married wife. But if the wrong-doer was unwilling to do this they recommended that the girl may be given to another in marriage and pronounced very heavy punishments for the abductor or seducer of a girl (*vide* Manu VIII. 366 and Yāj. II. 287-288). Sir Gooroodas Banerjee¹²¹² rightly expresses surprise at Macnaughten's saying that fraud was legalised by the Hindu Law in the case of the paiśāca form. Manu VIII. 366 says that if a man has intercourse with a girl of his own caste with her consent, he will have to give a fee to the father if the latter so desires and Medhātithi ¹²¹³ adds that if the father does not desire money the lover will have to pay a fine to the king, that the girl may be given to him or if she has lost her love for him, she may be given to another and if the lover himself wants to discard her he should be forced to accept her (as a wife). Nārada (strīpuṁsa, verse 72) similarly says that if a man has sexual intercourse with a maiden who is a consenting party, then there is no offence, but he must marry her after decking her (with ornaments) and treating her with honour.