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Chandragupta Maurya and His Times c12: Chapter IX: Law

Chandragupta Maurya and His Times c12

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Chapter IX: Law

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LAW

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Sources of Law. Kauṭilya [III. 1] mentions four Sources of Law in an ascending order of validity viz., (1) *Dharma* [sacred precept based on Truth (*satye sthito dharmo*)] (2) *Vyavahāra* (agreement), (3) *Charitra* (custom) and (4) *Rājaśāsana* (royal decree).

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It is further stated that the king is to administer the Law (*anuśāsat*) in accordance with (1) *Dharma*, (2) *Vyavahāra*, (3) *Saṁsthā* (*Lokāchāra*) and (4) *Nyāya*.

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It will thus appear that *Rājaśāsana* or the royal edict which is mentioned as the fourth source of Law is really based on *Nyāya* or what is right in the view of the king. The *Rājaśāsana* or the king's application of the law, or what may be called the judge's decision or judge-made law, will be determined by *Nyāya* or Right.

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*Nyāya* thus stands out as the ultimate source of law. It is explained that where there is a conflict in a case (*arthe*) between established custom, *Saṁsthā*, and *Dharmaśāstra* ('such as that of Manu') or between the king's decree (*Śāstraṁ rājaśāsanam*) and what is established by evidence (*Vyāvahārikaṁ Sākshivachanam*), the conflict is ultimately to be solved in the light of *Dharma*, i.e., *Dharmaśāstra*. In such a case, neither the evidence of witnesses nor the opinion of the king will count. When, however, there is a conflict between *Śāstra* or *Dharma-Śāstra* and *Nyāya* supported by local *dharma* and *āchāra* or custom, then *Nyāya* is to prevail. In such a case, the maxim of a *Dharmaśastra* will have no effect (*tatra pāṭhohi naśyati*). For instance, as the commentator points out, there is a maxim of the Dharma-śāstra that if there is a breach in the embankment, and in its neighbourhood a man is found with a spade in his hand, he is to be taken as the man who committed that breach (*Kuddāla-pāṇirvijñeyaḥ setubhettā samīpagaḥ*). But this decision will not be accepted in case the holder of the spade is a child incapable of committing that offence.

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Kauṭilya emphasises the conception that the king stands for *Daṇḍa* which upholds *Dharma*, the law that governs the four castes and *āśramas* or stages of life, and also the customs of the people based on it. It is this *Rāja-dharma* which protects all other *dharmas* that will decline without this protection (*Chaturvarṇāśramasyāyaṁ lokasyāchārarakshaṇāt naśyatāṁ sarvadharmāṇāṁ rājadharmaḥ pravartakaḥ*). Thus *Daṇḍa*, which enforces Dharma equally among all, whether son, or enemy, and is no respecter of persons, will ensure happiness in this world and pave its way for the next world too (*Daṇḍo hi kevalo lokaṁ paraṁ chemaṁ cha rakshati Rājñā putre cha śatruu cha yathādoshaṁ samaṁ dhṛitaḥ*).

Courts of Justice

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Persons well-versed in Dharma as expounded above are to be appointed as Judges called *Dharmasthas*. They are to be recruited from officers of the rank of *Amātyas* and *Amātyas* who are further qualified by the tests of *dharma* or righteousness (*dharmopadhāśuddhān dharmasthīya-kaṇṭakaśodhaneshu sthāpayet*) [I. 10].

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A Court is constituted by six Judges, three who are specialists in law, and three *Amātyas*. It is to be established at the different administrative headquarters both within the country (*janapada*) and also on its borders under the jurisdiction of *Antapāla* at its towns (*durga*). In the country it will be established at the centres called *Saṁgrahaṇa*, *Droṇamukha*, and *Sthānīya* (*Janapadasandhyādishu janapadasandhau antapāladurge saṁgrahaṇa-droṇamukhasthānīyeshu*).

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The Court used to sit in the morning.

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Civil Law. It is described under the heads of marriage and dowry, inheritance, housing and neighbourhood (including trespass), debt, deposit, slaves, labour, contract, sale, violence, and abuse, gaming and miscellanea.

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Validity of Agreements. There are rules pointing out the circumstances which invalidate agreements (*vyavahāra*), such as (1) *Tirohita*, where the agreement shows lapses due to its execution (a) without owner's consent (*svāmitirohita*), (b) in an improper place (*deśatirohitaḥ parokshisākshikaḥ*) where there were no direct eye-witnesses (c) after lapse of proper time (*kāla-tirohita*), (d) by improper transaction (*kriyātirohita*), and (e) with reference to parts of immovable property which are not visible objects (*dravyatirohita*); (2) *Antaragāra* (made in a secret chamber); (3) *Nakta* (made at night); (4) *Āraṇya* (made in a forest); (5) *Upadhi* (*chhadmakṛitaḥ*) (made by fraud); and (6) *Upahvara* (made in secret by the two parties to the agreement.).

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Exceptions are, however, allowed under each case, specially when witnesses are available or where an agreement made in the privacy of home concerns women who are in *purdah* (*strīṇāṁ anishkāsinīnām*), or the sick, or those of unsound mind, who can not execute the agreement out of house.

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Kauṭilya mentions different categories of valid and invalid agreements (*vyavahāras*) which seem to have been mixed up.

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An exception is made in favour of agreements of class (1) (b) described above, which were entered into by a couple contracting a *gāndharva* marriage (*mithaḥ samavāye*) or of class (3) made by foresters (*araṇyacharāṇāṁ*), whether merchants (*Sārtha*), cowherds (*Vrajāh goshṭhavrittayo gopālāḥ*), denizens of forests (*Āśramo vanakuṭumbinaḥ*), hunters (*Vyādhāḥ Kirātāḥ*) and wandering acrobats (*Chāraṇāh laṅghanaplavanādijīvinaḥ*).

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Agreements made by unauthorised persons are invalid.

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**Hearing.** There are rules of procedure laid down, allowing plea, counterplea, and rejoinder.

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**Procedure.** The hearing of the case is to be preceded by registration (*abhilikhya niveśayet*) of the date of agreement, the names, place of residence, caste, gotra, and the substance (*kṛitasamarthāvasthayoḥ*) of the parties to the suit.

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Statements of the plaintiff (*vādi*) and the defendant (*prativādi*) are also to be duly written and recorded.

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The recorded statements are to be carefully scrutinised (*nivishṭāṁścha aveksheta*).

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**Recording Clerk.** A clerk (*Lekhaka*) of the Court not writing statements as they are made, writing what is not stated, and not writing what is stated (*uktaṁ na likhati anuktaṁ likhati*), adding words of his own to what is stated to make it unobjectionable (*duruktaṁ upalikhati*), or objectionable, (*sūktaṁ ullikhati*), and thus alters the grounds of the suit (*arthotpattiṁ vā vikalpayati sādhya-siddhiṁ anyathāyati*) is fined according to the gravity of the offence (*yathā parādham*).

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**Quick Justice.** There was not much of law's delay. The Defendant is allowed 3 to 7 nights to file his defence. Delay will be fined. The Plaintiff must submit his rejoinder (*pratyuktāḥ saḥ abhiyuktadatto-ttaraḥ pratibrūyāt*) the very day the defendant submits his answer (*pratyukta*). Otherwise he will be fined [III. 1].

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**Local Courts.** The law's delay was further reduced by decentralising the administration of justice. "Cases were commonly disposed of locally by reference to a body of arbitrators, permanent or constituted *ad hoc*, or by the officials of various grades; and there was a system of appeals as far as the king, who was regularly present in Court or represented by a Minister (*Prāḍvivāka*). Offences against caste or religion were tried by committees called *Parishads*" [*Cambridge History*, I. 485].

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For instance, disputes about boundaries (*sīmā-vivāda*) in the villages were decided on the spot by the elders and wisemen of the neighbouring 5 or 10 villages (*pañchagrāmī daśagrāmī vā*) [III. 9].

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Or the elders among the cultivators and herdsmen (*Karshaka-gopālaka-vṛiddhakāḥ*) or those who were the previous owners of the fields involved in the dispute (*pūrvabhuktikāḥ*), will be assisted by one or more other persons who are not non-residents of that locality (*abāhyāḥ*) and who have personal knowledge of the disputed boundaries ('such as the hunters of the neighbourhood'). They will lead them to the spot and point out the correct boundaries, wearing their distinctive dress different from that of others (*viparītaveshāḥ*). The hunters and such other persons having personal knowledge of the disputed boundaries may be associated with the judges of the dispute as a body or by one representative (*bahava eko vā*).

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Disputes about the ownership of fields (*Kshetra-vivādam*) are to be decided by the elders of the adjoining villages (*Sāmanta-grāma-vṛiddhāḥ*). In case they differ (*dvaidhībhāve*), the decision will be according to the opinion of the majority of persons known for their piety and popularity (*yato bahavaḥ śuchayo anumatā vā tato niyachchheyuḥ*) [III. 9].

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In a similar manner, by bodies of local arbitrators, disputes are to be settled regarding, (1) *Tapo-vana*, habitations of hermits, (2) *Vivīta*, pasture lands, (3) *Mahāpatha*, the highways, (4) *Śmaśāna*, cremation grounds, (5) *Devakula*, temples, (6) *Yajñasthāna*, places for sacrifice, (7) *Puṇyasthāna*, sacred places.

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The evidence of men on the spot counts most in justice (*Sarva eva vivādāḥ sāmantapratyayāḥ*) [III. 9].

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This principle of neighbourhood and local knowledge is accepted by all the later law-givers, such as Manu [VIII. 62; 258; 262; 259; 260]; Yājñavalkya [II. 150-2]; Bṛihaspati [I. 25-7]; and *Śukranīti* [IV. 5, 24; stating that 'foresters are to be tried with the help of foresters, merchants by merchants, soldiers by soldiers']. Each group was thus self-governing in the matter of its disputes and judging them.

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Examples of Law: Marriage. Kauṭilya mentions eight kinds of marriage, *Brāhma*, *Prājāpatya*, *Ārsha*, *Daiva*, *Gāndharva*, *Āsura*, *Rākshasa*, and *Paiśācha*. In *Brāhma* marriage, the dowry of the bride is a free and loving gift to her of her father. *Ārsha* marriage is marked by the gift of a couple of cows (*go-mithuna*) to the bride's father. That it was a very common form of marriage in those days is evident from the statement of Megasthenes that the Indian's marriage was marked by a gift of "a yoke of oxen" [Frag. XXVII]. In *Āsura* marriage, the father receives a consideration (*Śulka*) in return for which he gives away his daughter in marriage to the bridegroom (*Śulkādanādāsuraḥ*) [III. 2].

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Property and Rights of Married Women. *Śrīdhana* may consist of *vṛitti*, or means of subsistence, or *ābandhya*, such as ornaments. *Vṛitti* thus includes *bhūmi*, agricultural land, and cash (*hiraṇyādi*), above a minimum of 200 *Kārshāpaṇas*, which will produce an income from its investment. The minimum is mentioned because an amount below it will be too small to produce a living income. There is no minimum limit mentioned for jewellery.

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It is lawful for the husband to make use of his wife's property against emergencies like disease, scarcity, or calamity, and also in warding off dangers, and for a religious purpose. In the case of the first four approved kinds of marriage, when the husband and wife have become parents of two children, then the amount of *strī-dhana* spent by them up to a limit of 3 years will not be required to be repaid.

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A widow devoid of issue may remarry the brother of her husband with the consent of her father-in-law.

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She forfeits her property given by her husband and father-in-law if she re-marries any one against the consent of the latter. If, while her husband is alive, she leaves him and re-marries another (*jñāti-hastād abhimṛishṭā*), the second husband must return the property given her by first husband and father-in-law.

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A widow with a son has to pass her property to him in case she re-marries [III. 2].

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**Re-marriage.** Kauṭilya is for monogamy. He permits a second wife for the sake of an issue and a son [*Ib.*].

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Marriage is dissoluble by prolonged absence, except in the case of a government servant (*rāja-purusham*) sent abroad [III. 4].

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Re-marriage is allowed in the case of husbands turning ascetics, or being dead, and leaving no issue. Even if there is issue, prolonged absence will be a cause for re-marriage.

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But re-marriage is restricted to the relations of the husband, preferably brothers in order of age, and, failing them, a person of the same *gotra* and a nearest relation. In case of her marriage (*vedane*) with one who is not a kinsman of her previous husband, the man who gives away the bride in marriage (*dātri*) and also he who marries her (*vetṛi*) are both punishable.

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If she lives with another man in an unlawful manner (*jāra-karmaṇi*), both (*jāra-strī*) will be proceeded against on a charge of adultery [*Ib.*].

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A girl attains majority (*prāptavyavahārā*) at 12 and a boy at 16 [III. 3].

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Inheritance. Sons as such have no right to property (*anīśvarāḥ*) when their parents are alive.

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Sons only will inherit their father's property, and not daughters, except where there are no sons. In that case, brothers will have a share in inheritance with the daughters [III. 5]. Megasthenes also states: "The sons succeed the father" [Frag. XXVII].

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A person dividing his property while living should not favour one son (*naikaṁ viśeshayet*) but should treat all sons equally. He should not also disinherit a son without sufficient reason. This points to the right to disinherit.

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Sons of different kinds. Sons are described as of different varieties: (1) *Aurasa*, natural legitimate son; (2) *Putrikā-putra*, born of a girl appointed to raise male issue for him by a father who has no sons, (3) *Datta*, a son given away by his parents according to prescribed ceremony to another person who adopts him as his son; (4) *Upagata*, one who offers himself as a son to a person who adopts him; (5) *Kṛitaka*, one who is affectionately adopted as a son without any ceremony; (6) *Krīta*, one who is obtained by purchase from his parents and adopted as a son; (7) *Kshetraja*, son begotten on one's wife by another appointed by him for the purpose (*niyuktena*); (8) *Gūḍhaja*, a son begotten on one's wife in secret in the house of relatives, without appointment by her husband; (9) *Apaviddha*, a son disowned (*utsṛishṭa*) by his parents and adopted by another by ceremony (*saṁskāra*); (10) *Kānīna*, son born to a maiden before marriage; (11) *Sahodha*, son of a girl carrying at the time of marriage; (12) *Paunarbhava*, son of a remarried woman [III. 7].

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A natural son born after the adoption of other classes of sons will be entitled to two-thirds of his father's property. The other sons of the same caste (*Savarṇa*) will be entitled to 1|3 and sons of other castes will be entitled only to subsistence and clothing, i.e., livelihood. A *Savarṇa* son is defined to be one belonging to the next lower caste, a son, for instance, who is born of a Brāhmaṇa father and a Kshatriya mother, while an *Asavarṇa* son is born of a mother of the next lower caste, *Vaiśya*.

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The marriage of a man of higher with a girl of a lower caste is *anuloma* marriage. The marriage of a man of lower caste with a girl of higher caste is *pratiloma* marriage. *Pratiloma* marriage is against *Dharma* (*dharmātikrama*) and should not be allowed by the king. Otherwise he will go to hell (*narakamanyathā*).

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Offspring of mixed castes (*antarālas*) will have equal shares of inheritance, [III. 7].

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**Laws of Co-operation.** Rural life is regulated by a body of wholesome regulations.

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Persons failing to make their stipulated contributions to work for the village are fined. The cultivator not making his contribution in labour (*akurvato*) has to pay as fine double the amount of wages (*karmavetana*) payable to him. One who does not make his contribution in the form of capital or cash as per stipulation will have to pay double the amount as fine. One whose contribution is to be in kind, in food and drink, will have to supply double the stipulated quantities at the village communal dinners (*pravahaṇeshu goshṭhī-bhojanādishu*) for which they were required and promised.

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Any one not paying his share of contribution towards the expenses of public amusements (*prekshā*) arranged by the whole village, such as Music, Dance, and the like, is not to be allowed admission to them by himself and with his relatives (*sasvajano na preksheta*). If he still tries to enjoy the performance by surreptitious means (*prachchhannaśravaṇekshaṇe*), he will be fined double the amount of contribution expected from him.

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Any one not contributing to works for the good of the whole village (*sarvahite karmaṇi nigraheṇa*) will have to pay a fine double the contribution fixed per head.

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A person acting for the welfare of the whole village (*sarva-hita*) is to be obeyed. Disobedience is punished with a fine of 12 *paṇas*.

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There is also a provision that in the event of the village Headman (*Grāmika*) being away on public duty (*grāmārtha*), his responsibility in the village for its agricultural operations would be taken over by turns by those who owe their living to the village as its employees (*upavāsāḥ*).

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Lastly, it is laid down that it is the duty of the king to grant concessions to organisations of villagers who by mutual agreements (*samaya*) carry out works of public utility (*deśahitān*) in the villages, such as extension of cultivation (*setu* as defined in II. 6), bridges on roads (*pathisaṁkramān*), or decorative and protective works (*grāmaśobhāścha rakshāścha*).

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The concessions granted by the State included the appropriation of the amounts of fines imposed on the above classes of defaulters, wanting in the spirit of co-operation and in the civic sense, by the village itself and not by the State [III. 10].

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Debt and Interest The legal (*dharmya*) rate of interest is stated to be 15 per annum. This rate probably applied to debts secured by mortgage (*bandhādhānapūrvā*), as the commentator suggests. This explains the great difference in rates. 5 per cent per month is stated to be commercial (*vyāvahārika*) interest; 10 per cent prevailing among traders dealing in goods brought from out of the way places difficult of access (*kāntāragānāṁ durgamamārgapaṇyabāhināṁ vaṇijām*); and 20 per cent among merchants engaged in sea-borne trade (*sāmudra*).

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Charging interest in excess of prescribed rates is punishable. Witnesses of such usurious transactions (*śrotṟīṇaḥ*) are also to be fined [III. 11].

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Agricultural Loan. Interest on grains lent (*dhānya-vṛiddhi*) is not to exceed half of the quantity lent if it is repaid at harvest (*sasya-nishpattau*).

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If the interest is paid after the harvest, the account of the loan will be converted in terms of money (*mūlya-kṛitā*).

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The amount of the interest on the loan under the new arrangement (*prakshepa-vṛiddhi*) is not to exceed half the money value of the principal (*udayādardhaṁ*).

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If the creditor abstains from asking for repayment of the loan (at the time of the harvest) (*sannidhāna-sannā*), when the debtor can conveniently pay it, the creditor will be entitled to interest for one year only after which no interest will run on the loan (*vārshikī deyā*).

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Interest on debts due from persons who are engaged in sacrifices taking a long time (*dīrghasatrāḥ*), or who are suffering from disease, or students staying away for their education in the homes of their teachers (*gurukuloparuddha*) or who are minors or devoid of substance (*asāra*) shall not be added to principal so as to increase the principal (*ṛiṇam na vardheta*).

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**Limitation** A debt is barred by limitation if it is not recovered within ten years. This law of limitation is however relaxed in the case of a creditor who is not able to proceed for the recovery of the debt, for instance, a minor, a person too old or sick, or who has gone abroad (*proshita*), or has left the country (*deśatyāga*), or in times of civil commotion (*rājyavibhrama*) [III. 11].

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Cultivators and government servants (*Rājapurushāḥ*) are not to be arrested for debt while at work (*karmakāleshu*) [*Ib.*].

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**Deposits.** If a deposit (*upanidhi*) is lost under circumstances for which the holder of the deposit is not responsible, it is not to be reclaimed. These are stated to be (a) conquest of the country with all its towns and rural areas by the forces of the enemy or by wild tribes (*Āṭavikas*), (b) destruction wrought by outlaws (*pratirodhaka*) on a village, on its stores of merchandise (*sārtha* or *vaṇik-saṁgha*), and its cattle farms (*vraja*), (c) practice of fraud or financial ruin, (d) loss (*abādha*) caused to the village by fire or flood, and (e) sinking of a ship laden with goods or its plunder by pirates. [III. 12].

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**Prescription.** Prescriptive rights to property are governed by certain laws. A ten years' enjoyment and possession of property neglected by its owner will make him forfeit it,.unless the owner is a minor, or too old, or living abroad, or has left the country in consequence of civil disturbance. Twenty years' possession is required to acquire title to immovable property [III. 16].

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**Defamation** Crimes under this head are described as *Upavāda* (defamation), *Kutsana* (contemptuous talk or insult), and *Abhibhartsana* (abuse or threat). All abusive expressions, whether true, or false, are actionable.

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**Threat.** Threatening with an injury renders one liable to half the penalty for inflicting the same injury [III. 18].

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**Slander.** Reference is made to calumnies regarding the learning (*Śrutopavāda*) or calling (*Vṛittyupavāda*) of persons such as Rhapsodists and Story-tellers (*Vāgjīvana*), Craftsmen (*Kāru*), or Artists and Dancers (*Kuśīlava*) respectively. A cause of action may also arise from defaming a person as the native of a notorious place (*Janapadopavāda*). As examples of countries as subjects of contemptuous reference, Kauṭilya cites *Prāghūṇakas* and *Gāndhāras*. Prāghūṇaka is the name of a country which is to the east of the country called *Hūṇaka* for which there is another name *Chaṇḍālarāshṭra* in popular language, according to the commentator. The reference to Gāndhāra and to a country beyond it is another proof of Kauṭilya's knowledge of that region of which he is a native [III. 18].

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**Miscellaneous Offences: Feeding a Buddhist.** Among these, Kauṭilya counts the offence of feeding on occasions of the performance of worship or *Śrāddha* (*devapiṭri-kāryeshu*) Śākyas, (Buddhists), Ājivakas, Śūdras and wandering ascetics (*pravrajita*), and makes the offence penal [III. 20].

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**Criminal Law.** The administration of Criminal Law is described by the technical term *Kaṇṭaka-Śodhana* [IV. 1]. Among the cases contemplated we may mention theft, murder, burglary, or forcible entry, poisoning, coining, injury to property, criminal negligence, contumelious violation of cast-rules, boycott, and other acts of employees, combinations to control prices, or fraud in regard to weights and measures. In all these matters, the magistrates (*Pradeshṭā*) or revenue and police officers, were assisted by an army of spies, and *agents provocateurs*, as we have already seen.

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**Examples.** Some special laws may be cited.

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**Arrest.** No suspect (*Śaṅkitaka*) is to be arrested after an interval of three days from his supposed commission of an offence, except on strong proof of his guilt. Arrest on mere suspicion was not allowed (*trirātrād ūrdhvaṁ agrāhyaḥ*). The idea is that an interval of 3 days would lose much necessary evidence, rendering useless the later interrogation of the suspect, and would give time for the removal of incriminating implements, etc, to the custody of innocent persons, (*prichchhābhāvādanyatropakaraṇadarśanāt*) [IV. 8].

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**Abetment.** Abetment was punished, such as supplying a murderer or thief with food, clothing (*bhaktavāsa*) and materials like fire, or giving information and advice [IV. 11].

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Sale of goods without licence (*anujñā*) was punished. Stocking of goods in unauthorised places for sale was punished by confiscation of the stock [IV. 2].

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Adulteration. Adulteration of goods of all kinds was also punishable, as we have seen, such as passing off old for new things [IV. 2 and 6]; impure, artificial, inferior, and foreign things for pure, natural, superior, and indigenous ones; and especially adulteration of food-products [IV. 2].

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Protection of Merchants [IV. 2]. Merchants travelling in caravans (*Sārthikāḥ*) should camp in a part of a village alloted to them and should make known the value of their goods to the headman of the village (*Grāmamukhya*). If any of the goods be stolen or lost, the village headman (*Grāmasvāmī*) must make good the loss. If the theft or loss occur outside the village on its borders, the loss is to be made good by the *Vivītādhyaksha*. If it occurs in a place not within his jurisdiction, then the officer called *Chorarajjuka* is to compensate the loss. If the loss takes place where there is no such officer, even in that unprotected locality, the responsibility for the loss must rest on some one in charge of this "No Man's Land", who is called *Sīmā-svāmī*. Failing him, the people of the neighbouring five or ten villages must pay for the loss. This provision therefore, acted as a sort of Punitive Tax for the security of life and property [IV. 13].

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Thus long trains of caravans of traders could slowly wend their way, by day, and by night, in assured safety from Pāṭaliputra to Gandhāra through different regions under changing guards transferring their charge from one to the other. This security of transport must have built up the trade of the country.

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Traffic Regulations. There is an interesting traffic-regulation: the charioteer who gives the warning to a passer-by by shouting "Get out! Get out!" (*Apehi! Apehi!*) is not punishable in case of a collision (*sanghaṭṭane*) [IV. 13]. The same is the case with one driving an elephant.

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Blocking roads and flow of water for cultivation (*karmodakamārgaṁ rundhataḥ*) was punishable [III. 10].

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Security against thieves. Pocket-picking (*granthi-bheda*) was known and severely punished [IV. 10].

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Security of life and property was the charge of a Department of which the head is called *Pradeshṭā*. His subordinate staff comprised the two classes of officers known as *Gopa* and *Sthānika*. Their duty is to detect thieves on the countryside (*bāhya*), just as it is the duty of the Mayor of the city (*Nāgarika*) to guard its interior (*antardurga*) against such thieves [IV. 4].

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Law and Order: Greek evidence. The general conditions of Law and Order then prevailing in the country as a whole are thus reported by Megasthenes. In commenting on the rarity of law-suits among Indians as evidence of their frank dealing, he goes so far as to say that "an Indian has never been convicted of lying" [Frg. 35]. He also says: "Indians are not litigious. Witnesses and seals are unnecessary when a man makes a deposit. He acts in trust. Their houses are usually unguarded."

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Strabo [XV. i. 53] says: "Megasthenes who was in the camp of Sandrokottos (Chandragupta), which consisted of 400,000 men, says that he found that the thefts reported on any one day did not exceed the value of 200 *drachmai* (=about £8 or Rs. 100).

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According to Onesicritus, in Sind, no legal action could be taken, except for murder and assault. 'We cannot help being murdered or assaulted, whereas it is our fault if we give our confidence and are swindled. We ought to be more circumspect at the outset and not fill the city with litigation" [Strabo, XV. c. 702]. Absence of facilities for litigation is an index to the high standard of morals prevailing in the country. Strabo [*Ib.*] says: "The simplicity of their laws and their contracts is proved by the fact that they seldom go to law." And again: "They dislike a great undisciplined multitude and consequently they observe good order."

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Megasthenes has a further statement [Frag. XXVII]: "The Indians neither put out money at usury, nor know how to borrow. It is contrary to established usage for an Indian to do or suffer a wrong and therefore they neither make contracts nor require securities."

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**Penal Code.** A general sense of Law and Order was, however, consistent with, and was perhaps maintained, by a severe Penal Code. Mutilation of limbs was the punishment for certain crimes. Strabo says: "A person convicted of bearing false witness suffers a mutilation of his extremities. He who maims another not only suffers in return the loss of the like limb, but his hand also is cut off. If he causes a workman to lose his hand or his eye, he is put to death." The *Arthaśāstra* [IV. 8 and 10] has two Chapters dealing with various forms of torture (*Śaṅkārūpa-karmābhi-* *graha*) and mutilation of limbs (*Ekāṅgavadha*), but treats the provision for mutilation as a dead letter by the substitutes prescribed in the shape of fines in lieu of such physical penalties.

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Purity of Justice. This was secured by a close inspection of judicial administration under the chief Officers, *Samāhartā* and *Pradeshṭā* [IV. 9].

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Offences of Judges. A Judge (*Dharmastha*) showing temper (*vākpārushya*) on the bench by browbeating (*tarjayati*), rebuking (*bhartsayati*), expelling (*apasārayati*), or snubbing, or defaming and abusing the suitor, is punished.

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If he does not put the question which should be put, or asks what should not be asked, or does not take note of the answer given to his own question, or tutors, prompts, and hints to a witness (*prichchhyaṁ na prichchhati aprichchhyaṁ prichchhati prishtvā vā visrijati śikshayati smārayati pūrvaṁ dadāti veti*) he is also punished.

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A graver offence for a Judge would be to put irrelevant questions to the witness (*adeyaṁ deśaṁ prichchhati*); to decide the issue without reference to him (*kāryaṁ adeśena ativāhayati sākshiṇaṁ vinaiva nirṇayati*); to mislead a truthful witness (*chhalena atiharati satyavādinamapi sākshiṇaṁ chchalavākyena aparādhayati*); to tire out the patience of litigants and force them to leave the court by making delay (*kālaharaṇena śrāntaṁ apavāhayati*); to cloud the issue by not taking the statements of the witness in the order in which they are given (*mārgāpannaṁ vākyaṁ aparityakta-kramaṁ sākshivākyaṁ utkramayati*); or to have a collusion with the witness by helping him with hints and clues (*mati-* *sāhāyyaṁ sākshibhyo dadāti*); and finally, to take up again a case previously disposed of (*tāritānuśishṭaṁ kāryaṁ punarapi gṛihṇāti*). Repetition of such offences will be visited by dismissal (*sthānād vyavaropaṇam*) [IV. 9].

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*Tampering with deposition.* Taking liberties with the statements of witnesses by not recording them faithfully or tampering with the records of depositions will make the Clerk of the Court concerned liable to punishment varying with the gravity of the offence, as we have already seen.

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*Priority of the Laws of Kautilya to those of Manu and other Smritis.* It will appear that Kauṭilya legislates for a society which is much older than that to which the Smṛitis of Manu and Yājñavalkya are related. The most vital and fundamental factor of a social system is the laws governing marriage and the position of women.

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As we have seen, the Laws of Kauṭilya in this respect are based on social customs which approximate to Vedic Society rather than to the later type of society reflected in the Smṛitis of Manu and Yājñavalkya.

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*Divorce.* For instance, while divorce is unthinkable in the Smṛitis, Kauṭilya allows it under certain circumstances. No doubt, Manu allows the husband to divorce his wife and re-marry, but the woman is denied this privilege. According to Manu, "a wife who drinks spirituous liquors, who acts immorally, who shows hatred to her husband, who suffers from an incurable disease, who is mischievously inclined, or who wastes his property, may be divorced by her husband who may replace her by another wife" [IX. 80]. Manu also mentions certain conditions under which the husband can desert his wife for a temporary period. But the above Smṛitikāras are unanimous in confining these rights of divorce and desertion to husband and denying them to woman who is enjoined to offer unquestioning and unconditional obedience and fidelity to her husband in both life and death [Manu, V, 151, 154; IX, 77-78; V, 148; Yājñavalkya, I. 75, 77]. Kauṭilya, however, is more rational and human by allowing women equal rights with men. He allows the woman to divorce her husband under specified conditions. One of these is that both must consent to a divorce on the ground of their standing mutual enmity (*Parasparaṁ dveshāt mokshaḥ*) [III. 3], so that they may start afresh in their matrimonial career. But Kauṭilya does not allow divorce when either party is against it. According to him, a woman, even if she is full of hostility against her husband, cannot seek divorce unless he consents to it. Nor can a husband seek it against his unwilling wife, however much he may dislike her.

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At the same time, Kauṭilya does allow the wife to separate from her husband where her position is insupportable due to the husband being "of mean morals (*nīcha*), tainted by the commission of the worst sins (*patitaḥ mahāpātakadūshitaḥ*), or a murderer (*prāṇābhihantā*), or impotent (*klība*), or afflicted by consumption (*rājakilbishī*), or accused of bribery, or of treachery to the king, or where he is away in a foreign country [III. 2.].

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Kauṭilya, however, does not depart altogether from the ideals of conservatism and orthodoxy when he does not allow a divorce in the case of the first four approved kinds of marriage, as we have seen (*amoksho dharmavivāhānām*) [II. 3].

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*Re-marriage.* There is, again, a difference between Kauṭilya and the later law-givers in regard to remarriage of women. According to Manu, the sacred texts do not allow remarriage of widows, and it is condemned by the learned as fit for animals [IX, 65, 66]. He also states emphatically that a maiden can be given in marriage only once [IX, 47]. He does not allow a widow even to mention the name of another man in connection with marriage [V, 157].

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Again, the period of absence of her husband, however prolonged, is no excuse for the wife to choose a second husband [IX, 76, 78; Yājñavalkya, I, 89]. While Yājñavalkya considers it to be a crime on the part of man not to remarry after his first wife is dead [I. 89), he would not allow a woman to remarry under similar circumstances. This means further that a widow could not find relatives to associate themselves with the impious undertaking of giving her away for her second marriage, and, if she remarried by herself, she would be branded as a *svairiṇī* [I, 63, 64, 67]. The ideal laid down for a wife was even her self-immolation as a *satī* [I, 86].

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Manu contemplates the case of a woman who, abandoned by her husband, or as a widow, of her own accord, marries a second husband, in which case the son born of such marriage is called a *Paunarbhava*, 'the offspring of lust' [IX, 175]. But he evidently allows the virgin widow to remarry [*Ib* 176].

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Kauṭilya treats the absence of husband as a cause for his wife's remarriage, as has been stated above. The time of such absence differed according to circumstances such as caste, whether the woman was a mother or not, or whether she was provided with maintenance (*aprajātā*, or *prajātā*; *prativihitā* or *aprativihitā*). In the case of the husband being a Brahmin student who is absent for study abroad, the period of waiting was extended to 10 years, and, if she is a mother, to 12 years. Remarriage was not permitted where the husband is an officer of the State and is sent abroad on public duty. Where the aforesaid periods of waiting were exceeded, the wife was permitted to take to a second husband of the same caste to prevent the extinction of her family. The wife might also remarry a second husband after her liking (*yatheshtaṁ vindet*) where, due to the absence of her husband, she lacks maintenance and is not maintained by her relations, and is thus compelled to remarry as a means of livelihood, or of saving herself against difficulties [III. 4]. In the case of the approved marriages of four kinds aforesaid (*Dharmavivāha*), remarriage is allowed to the wife who is a *Kumārī* or a virgin, in case her husband has gone abroad, after waiting for his advent for the prescribed period varying from three months to one year. But the dissolution of the marriage was to be formally effected with the permission of the Court (*Dharmasthairvisṛishṭā*).

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Remarriage is also allowed to women whose husbands have been abroad too long (*dīrghapravāsinaḥ*) or have turned ascetics (*pravrajita*) or are dead (*preta*) [III. 4], or where the wife was left without issue (*Kuṭumbakāmā*), in which case she was entitled to the *Strīdhana* given to her by her former father-in-law and husband [III. 2].

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Post-puberty Marriages. These marriages are allowed both by Kauṭilya and Smṛitikāras, but they differ in their attitude towards it. The adult bride loses all her claims upon her father when she chooses for herself a husband of her own choice [Manu, IX, 90, 91; III, 27-30, 35; IX, 93; III. 36, 40; Yājñavalkya, I, 64; II, 287; etc.,]. Kauṭilya's position is that any kind of marriage is to be approved if it is a source of satisfaction to all concerned (*Sarveshām prītyāropanam apratishiddham*) [III. 2].

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Anuloma Marriages: Both Kauṭilya and the Smṛitis are at one in allowing *Anuloma* marriages [Yājñavalkya I. 57; Manu III, 14-19]. But, unlike Kauṭilya, the *Smṛitis* do not allow the marriage of a man of the three higher castes with a Śūdra girl. Kauṭilya is more liberal in not recognising any difference between the three higher castes and the Śūdra in this respect. The only distinction that Kauṭilya makes is as regards the division of inheritance. As we have already seen, the son of a man's Brahmin wife is entitled to four shares; that of his Kshatriya wife three shares; that of his Vaiśya wife two shares; and the son of a Śūdra wife one share [III. 6]. Then, again, while Manu will not give any share in his paternal property to the son begotten of a Śūdra woman who is not legally married by the man of the upper classes, Kauṭilya would grant such a son a third share of the property [Manu IX. 155; *Arthaśāstra*, III, 6].

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Other features of Mauryan Society. Mauryan society as depicted by Kauṭilya was different in other ways from the society of the Smṛiti times. We have seen that Āryas were in the habit of drinking wine provided it was of prescribed quantity [II. 25]. On the other hand, Yājñavalkya will not allow even taking meals at the house of one who lives by selling liquor (*Surājīva*) [I. 164]. Again, Mauryan society saw Brahmins freely taking to a military career. The Mauryan army had its Brahmin regiment, as we have already seen [IX.2].

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It may be noted in conclusion that the *Ṛigveda* knows of post-puberty marriages, has no idea of the custom of *Satī*, and knows of widow-marriage. In the funeral hymn of the Ṛigveda, the widow is stated to lie by the side of her husband only for a moment. She is asked "to come unto the world of life" [*Ṛv.* X. 85, 21-22; 18, 8]. In the Epics also we see that the marriage of girls after puberty was a prevailing custom along with that of *Svayaṁvara*.

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Thus the legal data and material furnished by the *Arthaśāstra* of Kauṭilya constitute valuable evidence proving its antiquity [See H. G. Narahari, *Society in Mauryan India*, in the *New Indian Antiquary* for February, 1940 for a good discussion of this topic].

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