History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v5.c71.s1.102
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v5.c71.s1.102
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v5.c71.s1.102.1
Though many crimes do not in so many words come within the words of the definitions of the mahāpātakas the smṛtis extend by analogy the same condemnation as the mahāpātakas in three ways. For example, Yāj. III. 251 expressly states that one who kills a kṣatriya or vaiśya engaged in (soma) sacrifice or a foetus or an ātreyī woman has to undergo the same expiation as for brāhmaṇa murder (therefore this is *vācanikātideśa*). Yāj. III. 232-233 extends the sin of *gurutalpa-gamana* to intercourse with several near female relatives (such as mother's or father's sister). This is extension by *tādrūpya*. The smṛtis declare many actions as equal to (*sama*) *mahāpātakas* in general or as equal to one of the *mahāpātakas*. This is *atideśa* by *sāmya*. A few words must be said on this topic. The general rule is that the expiation for those lapses that are declared to be equal to a mahāpātaka is less than (i. e. half of) what would be prescribed for the mahāpātaka itself⁷¹. And the penance for those that come under atīdeśa of the vācanika or tādrūpya kind is three fourths of that for the mahāpātaka itself. But it has to be noted that there is divergence of views about these in the sūtras and the smṛtis Acc. to Gaut 21. 10 giving⁷² false evidence, backbiting about another's guilt that will reach the king, falsely accusing one's *guru* with a grave sin or crime are equal to mahāpātaka. In Manu XI 55 (=Agnipurāṇa 168.
v5.c71.s1.102.2
25) the last two of these three and false statement about one's caste or learning or family (i e. saying that one is a brāhmaṇa when one is not) for securing prosperity or eminence are stated to be equal to brāhmaṇa's murder. Acc to Yāj. III 228 falsely charging one's *guru* is equal to brahmahatyā and false statement about one's caste or learning is equal to drinking surā (Yāj. III 229), while acc. to Viṣṇu Dh. S 37. 1–3 the three sins mentioned in Manu XI. 55 are to be included among minor sins (*upapātakas*), while giving false evidence is declared by Viṣṇu to be equal to drinking surā (36. 2). No useful purpose would be served by dilating at great length on the divergences of smṛtis on what lapses are equal to one of the Mahāpātakas. The digests explain that where the same lapse is described as equal to surāpāna by one smṛti and as equal to brāhmaṇa-murder by another the idea is that there is an option as to the penance prescribed for that lapse. Therefore only the remarks of Manu and Yāj. will be set out here. Manu XI. 56 (=Agnipurāṇa 168. 26) prescribes that forgetting the Veda (already studied), reviling the Vedas, giving false evidence, killing a friend, eating forbidden food or food that should not be eaten, these six are equal to surāpāna. Vide Yāj III 228 already referred to above. Manu XI. 57 holds that stealing a deposit or a man or horse or silver or land or diamonds and other gems is equal to the theft of brāhmaṇa's gold. Yāj. III. 230, Viṣṇu Dh S.
v5.c71.s1.102.3
5 383, Agnipurāṇa 168. 27 are to the same effect. Acc to Manu XI. 58 (=Agnipurāṇa 168 28) carnal intercourse with a sister by the same mother, with maidens, with females of the lowest castes (like Cāṇḍālas), with the wife of a friend or son is declared to be equal to the violation of a guru's bed. Yāj. III. 231 is practically the same (but he adds intercourse with a sagotra woman to the list). Gaut. 23. 12 and Manu XI. 170 are very similar. Yāj. III. 232-233 declare that a man who has sexual intercourse with a sister of his father or mother, with his maternal uncle's wife, with his daughter-in-law, with a co-wife of his mother, with his sister, with the daughter or wife of his Vedic teacher or his own daughter, is guilty of being a violator of the guru's bed and should have his penis cut off and be killed (by the king) and the woman concerned, if she was a willing party, should also be killed. Nārada (strīpumsayoga, verses 73-75)⁷³ states: "If a man has sexual intercourse with any of these women viz. mother, mother's sister, mother-in-law, maternal uncle's wife, father's sister, a wife of the paternal uncle or of a friend or of a pupil, a sister, sister's friend, daughter-in-law, daughter, the wife of one's Vedic teacher, a woman of the same gotra, one who has come for protection, a queen, an ascetic woman, one's wet-nurse, a woman performing a *vrata* and a brāhmaṇa woman, he becomes guilty of the sin of the violator of the guru's bed (i. e. incest).
v5.c71.s1.102.4
For that crime no other punishment is laid down except that of the cutting of the penis." These two, Yāj. and Nārada, show that excision of the organ and death are both the expiation and the punishment for this crime. The Mit. (on Yāj III. 233) adds that this punishment applies only to the offenders other than a brāhmaṇa, since Manu (VIII. 380) prescribes that a brāhmaṇa offender should not be punished with death whatever sin or crime he may have committed and that he is to be banished from the country unhurt and is to retain all his wealth. The Viṣṇudharma-sūtra (36.4-7) adds a few more women to the list of Yāj and Nārada (such as a woman in her monthly illness, the wife of a learned brāhmaṇa or of one's sacrificial priest or of one's *Upādhyāya*).