History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.478
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.478
- Language
- English
v4.c63.t2.478.1
Kauṭ. also similarly prescribes (III.¹⁵⁸⁷ 5. p. 161), 'the king takes heirless property except that of *śrotriyas*, setting apart (wealth) for the maintenance of women (of the deceased), for funeral rites and for poor or wretched (dependents of the deceased)'. The Mit., the V. Mayūkha, the Par. M. and others state that the verses of Nār. and Kāt. refer to *avaruddha-strī* alone, since the word *patnī* (duly wedded wife) does not occur therein, but only the words '*yoṣit*' and '*strī*'.¹⁵⁸⁸ There has been a great divergence of views in the decided cases about the significance of *avaruddha strī*. It is generally rendered as 'a concubine or mistress in the exclusive keeping of a person till the latter's death'. Several conditions are necessary to constitute a woman an *avaruddha strī* capable of claiming maintenance from the estate of her deceased paramour in the hands of his sons or other heirs. In the first place, she must have been continuously and exclusively in his keeping till his death. How long she should have been thus in his keeping cannot be fixed by any hard and fast rules. She must have been so long in his keeping continuously till his death that it can be said that the connection had become permanent. In *Bai Nagubai v. Bai Monghibai* a period of five years was deemed to be sufficient.
v4.c63.t2.478.2
In the second place the concubine¹⁵⁸⁹ must observe sexual fidelity to her deceased paramour after his death in order to be able to claim maintenance from the estate in the hands of his heirs or successors. In *Bai Monghibai v. Bai Nagubai*¹⁵⁹⁰ a third condition was laid down viz. that the connection of the concubine with the deceased paramour should be perfectly open and recognized and she must have been kept practically as a member of the family. But in *Bai Nagubai v. Bai Monghibai*¹⁵⁹¹ the Privy Council overruled the above decision and held that in order to entitle a mistress to maintenance it is not necessary that she should have resided in the same house with the deceased together with his wife and the ordinary members of his family. And in *Dayavati v. Kesarbai*¹⁵⁹² it was further held that the concubine need not prove that she was recognized by the family of the deceased or that his relationship with her was known to the family. A further restriction was imposed by the case of *Anandilal v. Chandrabai*¹⁵⁹³ that the intercourse with the paramour should not have been adulterous. But this case has been overruled by a recent Full Bench decision in *Akku v. Ganesh*¹⁵⁹⁴ which holds that a permanently kept concubine is entitled to be maintained out of the estate of her deceased paramour, although she has a husband living (who was examined in the case as a witness), provided she observes sexual fidelity to the deceased paramour after his death.
v4.c63.t2.478.3
It becomes, therefore, necessary to examine the Sanskrit medieval commentaries and digests in order to arrive at a correct interpretation of the expression ‘*avaruddha strī*’. Strangely enough, the Mit. does not define the word in the section on dāyabhāga, but only under ‘strī-saṅgrahaṇa’. Yāj. II. 290 provides, ‘a man should be awarded a fine of fifty *paṇas*, if he has intercourse with dāsīs that are *avaruddhā* or that are *bhujiṣyā* and also (other women such as prostitutes and *svairiṇīs*), even though ordinarily they (i. e. dāsīs and others) are approachable (without incurring the consequence of punishment)’. The Mit. explains that the word ‘ca’ placed after ‘bhujiṣyāsu’ in Yāj. II. 290 is meant to include *veśyās* and *svairiṇīs* along with bhujiṣyās. Acc. to the Mit. the verse prescribes the same fine for intercourse with three kinds of women, viz. dāsīs that are avaruddhā, dāsīs that are bhujiṣyā and other women such as *veśyās* (who are ordinarily approachable by all males of their own or higher castes) and *svairiṇīs* (who abandon their husbands and resort at their desire to some other male of their own caste, as defined by Yāj. I. 67). A woman though originally a *veśyā* or a *svairiṇī* may be known to be kept by a man. In that case if another man approaches her, Yāj. II.
v4.c63.t2.478.4
290 declares that he would be liable to be fined in the same amount as if he approached an avaruddhā dāsī or bhujiṣyā, because being in the keeping of another at the time she would be like a wife (as the other two classes do) so far as punishment for approaching a kept woman is concerned. This verse is not concerned with the maintenance of women at all. The Mit. here defines '*avaruddhā dāsī*' as "a slave woman who is prohibited by her master from intercourse with other men with an order to stay in the master's house alone in order that there may be no loss of attendance (on the master)." The Mit. defines a *bhujiṣyā dāsī* as 'one who is restricted (as to enjoyment) to certain definite males' (*puruṣaniyata-parigrahā bhujiṣyāḥ*).¹⁵⁹⁵ It is worthy of note that the Mit. employs different phraseology in defining the two words. In defining a bhujiṣyā it employs the word '*niyata*', which generally means 'fixed or definite', while in defining '*avaruddhā*' it employs the word '*niruddhāḥ*' meaning 'prevented or prohibited'. If the two words were intended to convey the same meaning, there is no reason why the Mit. should not have employed the same word (*niruddhā*) in defining a bhujiṣyā.
v4.c63.t2.478.5
The difference between an avaruddhā dāsī and a bhujiṣyā is that the former is ordered to stay in the master's house, while the bhujiṣyā is not so ordered and secondly the avaruddhā is forbidden to have sexual intercourse with any one except the master, while the bhujiṣyā is not so forbidden, but she is to restrict herself to enjoyment by certain specified males (friends or men of the master's family) and not necessarily by the master alone. This is the meaning assigned to those words by Mitramiśra in his commentary¹⁵⁹⁶ (not his digest) on Yāj. II. 290. The Mit. itself indicates the meaning of 'niyata' by saying elsewhere that ownership springs from certain fixed sources (*niyatopāyakaṁ svatvaṁ* on Yāj. II. 114). It is respectfully submitted that the Privy Council gave a wrong interpretation of the word '*avaruddhā*' in *Bai Nagubai v. Bai Monghibai*¹⁵⁹⁷. Though slavery is now abolished in India there is no reason why the two characteristics of avaruddhā (viz. staying in the master's house and being exclusively kept by the master) stated by the Mit. should not have been strictly adhered to by the Privy Council, particularly when they were holding heirs liable for the maintenance of kept mistresses, which is hardly ever allowed in any other system of law.
v4.c63.t2.478.6
With the greatest respect to the Full Bench, it must be said they went wrong in holding that *bhujiṣyā* means 'a mistress who is restrained from intercourse with other persons (other than the master)' and in holding that the only distinction between an avaruddhā and a bhujiṣyā is that the former is required to stay in the house of the paramour, while the latter is not (47 Bom. L. R. at pp. 13 and 22). The learned judges have not correctly interpreted the word 'niyata' and also the explanation of 'bhujiṣyā' given by the Bālambhaṭṭī¹⁵⁹⁸. The meaning of the Bālambhaṭṭī was misunderstood on account of the wrong meaning attached to the word 'niyata'. What the Bālambhaṭṭī means in explaining the definition of bhujiṣyā is 'one who is to be enjoyed by certain definite males only other than the master' (i. e. by the master and also certain defined males) and it does not mean 'who is forbidden to be enjoyed by males other than the master'.