History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.491

v4.c63.t2.491

The F. B. further rely upon a passage of the Mit. in support of their conclusion (47 Bom. L. R. at pp. 14 and 22). On the question of what properties are impartible, the Mit. on Yāj. II. 119 quotes Manu IX. 219 viz. 'clothes, conveyances, ornaments, cooked food, water (wells &c.), women, *yoga-kṣema* and pastures (or ways)—these they declare are impartible.' The Mit. explanation¹⁵⁹⁹ of the word '*striyaḥ*' may be translated as follows: '*striyaḥ*' here means 'female slaves; if they are uneven in number they should not be divided by taking their price into consideration, but they are to be made to work in turns (for the separated members of the family), but as regards women kept by the father such as svairiṇīs and the rest, they are not to be divided by the sons even though they be even in number". It is difficult to see how this passage supports the Full Bench decision. That passage can be explained in two or three different ways. In the first place, the Mit. having itself clearly distinguished and defined three classes, viz. avaruddhā, bhujiṣyā and svairiṇīs (together with veśyās also) it cannot be lightly supposed that elsewhere it gives up that distinction. Therefore it would be difficult to say that here (on Yāj. II. 119) the Mit. means that svairiṇīs are also the same as avaruddhās. Hence the interpretation should be that women who are avaruddhā (kept exclusively by the father) and even other women also like svairiṇīs (who had sexual connection with the father though not as avaruddhā) should not be divided i. e. a 'ca' should be understood after 'svairiṇyādyāḥ'. Or it is possible to hold that the word 'avaruddhā' in that passage is not employed in the strict technical sense (as defined by the Mit. on Yāj. II. 290), but in its etymological sense meaning 'women who are svairiṇīs and the like that are taken into his harem (or under his protection) by the father should not be divided'. This interpretation derives support from the explanation offered by the Subodhinī (which is repeated almost verbatim by the Bālambhaṭṭī) about the text of Gautama quoted by the Mit. that 'saṁyukta' in Gaut. means 'enjoyed' or 'confined' (in the house). This shows that the words 'ruddhā' and 'avaruddhā' were used in the etymological sense by distinguished writers. The Sm. C. II. p. 321 while explaining the word 'ruddhā' in Manu IX. 12 applied to a wife guilty of adultery explains it as meaning 'confined in a part of the house' (gṛhe avaruddhām). When the Mit. states (p. 811) that the verses of Nār. and Kāt. refer to avaruddhā strī it follows that these verses do not refer to bhujiṣyā, who would therefore be deemed not entitled to maintenance at all.