History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v2.c30.14

v2.c30.14

While ancient Dharmasūtras like Gautama allowed niyoga, there were other dharmasūtras and writers almost as old as Gautama that condemned the practice and forbade it. Āp. Dh. S.¹⁴¹⁶ II. 10. 27. 5–7 after referring to the view of some that a girl is given to a family in marriage and declaring that that practice (of polyandry) is forbidden adds a condemnation of niyoga ‘the hand (of a sagotra is considered to be) that of a stranger; that if (the marriage vow) is transgressed, both (husband and wife) certainly go to hell and that the reward obtained from observing the restrictions of the law is preferable to offspring obtained in this manner (by niyoga).’ Baud. Dh. S. II. 2. 38 refers¹⁴¹⁷ to the view of Aupajaṅghani that it is only the aurasa son that is to be recognized as a son and then quotes three verses (probably of the same ancient sage), which are also cited as quotations by Āp. Dh. S. (II. 6. 13. 6) and which call upon husbands to guard their wives and not allow others to procreate sons on the latter, as the sons so procreated will benefit only the begetter. Manu, though at first he describes *niyoga*, ultimately condemns it in the strongest terms possible (IX. 64-68). He says that among dvijātis a widow should never be appointed to raise issue from another, for by doing so ancient dharma would be violated, that in the mantras relating to marriage there is no reference to niyoga nor is the remarriage of a widow spoken of in the procedure about marriage, that niyoga is a beastly way and was first brought into vogue by king Vena who thereby caused *varṇa-saṃkara*, and that since that time good men condemn him who through ignorance appoints a widow to produce offspring. Manu (IX. 69–70) explains the meaning of niyoga by saying that the rules and the ancient texts about niyoga apply or refer to that case only where, after a girl is promised as a bride, the intended bridegroom dies, the brother of the latter is called upon to marry the girl and to have intercourse with her only once during each period till she gives birth to a son who would be the son of the deceased. Though Manu condemned the ancient practice of niyoga, he had to make provision for the *kṣetraja* son as regards partition (IX. 120-121, 145). It should be noticed that if the interpretation of Manu IX. 69-70 be accepted, the word '*vidhavā*' would have to be taken in two different senses in Manu and other texts e. g. in IX. 60 where Manu speaks of niyoga, the word means a girl promised to a bridegroom who died before the marriage ceremony was gone through, while in Manu IX. 64 '*vidhavā*' means 'a widow whose husband died after marriage was completed.' To say the least, this contravenes the canon of Mīmāṁsā interpretation that the same word in the same passage or context should have only one meaning. Bṛhaspati¹⁴¹⁸ refers to the fact that the Manusmṛti first described the ancient *niyoga* and then forbade it and adds that in former ages men possessed tapas and knowledge and could strictly carry out the rules while in dvāpara and kali ages there is great deterioration of power and so men of these times cannot now practise niyoga. The several kinds of sons will be dealt with under *vyavahāra*.