History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.941

v4.c63.941

In certain cases a person could take without being liable to be punished as a thief certain things belonging to another even if he had not the latter's permission. Gaut. XII.⁹⁵⁸ 25, Manu VIII. 339 (= Matsya 227. 112-113), Yāj. II. 166 allow a person of the three higher castes to take grass, fuel-sticks, flowers of trees and plants for feeding cows and for the worship of fire from any place as if they belonged to himself and also fruits of trees that were not enclosed. In such cases he would not be liable to a fine nor does he incur sin (Kullūka on Manu VIII. 339). A smṛti passage stating that if a man takes grass or fuel or flowers or fruits without permission deserves to have his hand cut off is explained by the Mit. (on Yāj. 166), Aparārka p. 774 and others as meant to apply to persons other than *dvijas* or as meant to refer to a case where they are taken by a person who has really no difficulty in securing these or where these are not taken for the use of cows or for worship. This matter had been a subject of discussion from ancient times. Āp. Dh. S.⁹⁵⁹ (I. 10. 28. 1-5) contains a discussion from which it appears that Kautsa, Hārīta, Kāṇva and Puṣkarasādi were of the opinion that whatever (however trifling or in whatever circumstances) a man took without the consent of the owner, he became a thief; that Vārṣyāyaṇi held that there were exceptions to this rule viz. that owners should not forbid the taking (of a small quantity of) grain in pods (such as *mudga* or *māṣa*) or grass for bulls yoked to carts, but that if large quantities even of these were taken there would be theft. Śānti 165. 11-13, Manu XI. 16-18 and Yāj. III. 43 state that when a brāhmaṇa or other person has fasted for three days because he has had no grain with him, he may on the 4th day take grain for one day's meal from anywhere he can get, whether from a threshing floor or from a field or a house, and that if the owner questioned he should declare to him the reason, but a person of a lower caste should not in this way take grain belonging to one of a higher caste, unless the latter pursues a sinful course or does not perform the duties of his caste. Vyāsa quoted by Sm. C. I. p. 175 allows a man to commit even theft, when he is in distress for food, first from a person of a lower caste, then from one of the same caste and then from one of a higher caste. Manu VIII. 341 (= Matsya 227. 110, 114), Nār. (prakīrṇaka 39), Śaṅkha and Kāt. (822A) state that a traveller whose food has run out may take from another's land without being liable to punishment two sugarcane stalks, two *mūlakas* (esculent roots), two cucumbers or melons, five mangoes or promegranate fruit and a handful of dates and of such corn as rice, wheat, gram &c.⁹⁶¹