History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v2.c30.7

v2.c30.7

The Vas. Dh. S. (17. 56-65) similarly prescribes¹⁴¹⁰ 'the father or brother of the widow (or widow's husband) shall assemble the *gurus* who taught or sacrificed for the deceased husband and his relatives and shall appoint her (to raise issue for the deceased husband). Let him not appoint a widow who is mad, not master of herself (through grief &c.) or is diseased or is very old. (Up to) sixteen years (after puberty is the period for appointing a widow) nor shall an appointment be made if the person who is to approach her is sickly. Let him approach the widow in the *muhūrta* sacred¹⁴¹¹ to Prajāpati like a husband, without dallying with her and without abusing or ill-treating her. No appointment shall be made through a desire to obtain¹⁴¹² the estate.' Baud. Dh. S. II. 2. 17 (S. B. E. vol. 14, p. 226) defines a *kṣetraja* son as one who is begotten by another man after permission on the wife of a deceased person or of a eunuch or of one who is suffering from (an incurable disease). Manu (IX. 59-61) says that a widow who is properly appointed may obtain offspring, in case there is total failure of issue, from her brother-in-law or a sapiṇḍa of her husband, that the person appointed should approach her in the dark and should be anointed with ghee and should procreate only one son and never two, while some say that he may procreate two. Baud. Dh. S. II. 2. 68-70, Yāj. I. 68-69 and Nārada (strīpuṁsa, 80-83) lay down similar rules. Kauṭilya (I. 17, p. 35) says that a king who is old or suffering from (incurable) disease should procreate a son on his queen through a mātṛbandhu or a feudatory chief endowed with qualities similar to his. In another place he says that if a brāhmaṇa dies without leaving a near heir, then a *sagotra* or *mātṛbandhu* may be appointed to procreate a *kṣetraja* son, who should get the inheritance.¹⁴¹³ The conditions necessary to allow *niyoga* were : (1) the husband, whether living or dead, must have no son; (2) the *gurus* in a family council should decide to appoint the widow to raise issue for the husband; (3) the person appointed must be either the husband's brother, or a sapiṇḍa or sagotra of the husband or (according to Gautama, a sapravara or a person of the same caste); (4) the person appointed and the widow must be actuated by no lust but only by a sense of duty; (5) the person appointed must be anointed with ghee or oil (Nārada,¹⁴¹⁴ strīpuṁsa, 82), must not speak with or kiss her or engage in sportive dalliance with the woman; (6) this relationship was to last till one son was born (or two according to some); (7) the widow must be comparatively young, she should not be old or sterile or past child-bearing or sickly or unwilling or pregnant (Baud. Dh. S. II. 2. 70, Nārada, strīpuṁsa 83-84); (8) after the birth of a son they were to regard themselves as father-in-law and daughter-in-law (Manu IX. 62). It is further made clear by the texts that if a brother-in-law has intercourse with his sister-in-law without appointment by elders or if he does so even when appointed by elders but the other circumstances do not exist (e. g. if the husband has a son), he would be guilty of the sin of incest (vide Manu IX. 58, 63, 143, 144 and Nārada, strīpuṁsa 85-86) and a son, born of such intercourse, would be a bastard and not entitled to any wealth (Nārada, strīpuṁsa 84-85) and that he would¹⁴¹⁵ belong to the begetter (Vas. Dh. S. 17. 63). Nārada says that if a widow or a male acts contrary to the stringent provisions about *niyoga*, he or she should be severely punished by the king or ortherwise there would be confusion. Yāj. II. 234 makes such a person liable to be sentenced to a fine of one hundred *paṇas*. It will be seen from the above that even in the times of the Dharmasūtras, the practice of niyoga was hedged round with so many restrictions that it must not have been very much prevalent and instances must have been rather rare.