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Administrative System of the Marathas c25.s3: 3. Punishment of the offender's relatives

Administrative System of the Marathas c25.s3

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3. Punishment of the offender's relatives

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If mutilation is an old form of punishment, the practice of arresting and imprisoning the relatives of thieves is no less old. Kautilya says, "Sons or wives of murderers and thieves shall, if they are found not in concert, be acquitted; but they shall be seized if found to have been in concert."¹² It is very difficult if not absolutely impossible, for sons and wives of thieves, to exculpate themselves from the charge of connivance with their fathers and husbands, as the presumption is always against them. The only result of this rule was that in Maratha days the wives and sons of thieves and other offenders were arrested and imprisoned as a matter of course. Sometimes the Maratha officers arrested the relatives of absconding offenders in order to induce them to come out of their hiding and surrender themselves.

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¹² Kautilya, Arthashastra, p. 287.

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4. Penance:

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Let us now enquire why the Chhatrapatis and the Peshwas after them, deemed it incumbent on themselves to prescribe some religious penance for convicted offenders. The king was regarded as not only the chief magistrate, but also as the ecclesiastical head of the state, and regulator of social and religious customs and practices. "He shall protect the castes and orders," says Gautama, "in accordance with justice, and those who leave (the path of duty) he shall lead back (to it)."¹³ Certain crimes made the offender an outcast, and Vishnu tells us that "social intercourse with such criminals is also a high crime. He who associates with an outcast is outcasted himself after a year; and so is he who rides in the same carriage with him, or who eats in his company, or who sits on the same bench, or who lies on the same couch with him." ¹⁴ It is therefore clear that the Chhatrapatis and the Peshwas compelled the offender to undergo some religious penance in order to prevent the subversion of caste and order by contact with such offenders conscious or unconscious, intentional and unintentional. Moreover, it was the duty of the king, as Vashishtha tells us, to correct the evil-minded in every way.

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¹³ S. B. E., Vol. II, p. 232

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¹⁴ S. B. E., Vol. VII, p. 133.

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5. Adultery:

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Adultery was another offence for which very severe punishment was inflicted on the female offender. In the year 1746 one Bhikaji Gauli and his paramour were fined one khandi of ghi. The next year the wife of a Muhammadan carter was sent to prison; and in 1755 a Koli woman, Randki by name, was condemned to slavery, but she was saved from this terrible fate at the prayer of her kinsmen and was let off with a fine of Rupees fifty only. A fine of five hundred Rupees was inflicted on one Shankraji Chauhan for committing adultery in the year 1755-56; a girl was actually sold in slavery for failing to rise above the hankering of the flesh. ¹⁵ Under the administration of the elder Madhava Rao, it was decided that adultery with a willing woman deserted by her husband was no offence at all,¹⁶ but in two ordinary cases imprisonment was the punishment inflicted.¹⁷ In the year 1781-82 an adulteress, Ahili by name, was set at liberty after her nose had been cut off, while the male offender was let off with a fine only. A few years later another woman was released from prison on her father standing surety for her good conduct.¹⁸

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¹⁵ Peshwas' Diaries, Balaji Baji Rao, Vol. II, pp. 66-68.

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¹⁶ Peshwas' Diaries, Madhava Rao I, Vol. II, p. 209.

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¹⁷ Ibid, p. 210.

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¹⁸ Peshwas' Diaries, Madhava Rao, II, Vol. III, p. 108. .

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Let us now enquire how far these punishments had the sanction of the old lawgivers, or to what extent they were the inevitable corollary of the regulations laid down by them.

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Kautilya recommends three punishments for adultery. When any person abets a thief or an adulterer, he as well as the woman who voluntarily yields herself for adultery shall have their ears and nose cut off or pay each a fine of 500 panas, while the thief or the adulterer shall pay double the above fine.¹⁹ In a subsequent chapter dealing with sexual intercourse, Kautilya lays down, that "A woman who, of her own accord, yields herself to a man shall be slave to the king."²⁰ Again, "A relative or a servant of an absentee husband may take the latter's wife of loose character under his own protection. Being under such protection, she shall wait for the return of her husband. If her husband, on his return, entertains no objection, both the protector and the woman shall be acquitted. If he raises any objection, the woman shall have her ears and nose cut off, while her keeper shall be put to death as an adulterer."²¹ It is therefore clear that Ahili would have lost her nose, and the Koli girl would have been the king's slave like many of their fellow criminals even if they had been tried by a Mauryan court instead of a Maharashtra Nyayadhish. It should be noted at the same time that the principle laid down by Madhava Rao I had the approval of Kautilya who says "Those women who have been rescued from the hands of thieves, from floods, in famine, or in national calamities, or who, having been abandoned, missed, or thrown out as if dead in forests, have been taken home may be enjoyed by the rescuer as agreed upon."²² Narada is more explicit on this point. "A man is not punishable," says he, "as an adulterer for having intercourse with the wife of one who has left his wife without her fault, or of one impotent or consumptive, if the woman herself consents to it."²³ In the case above referred to, the woman had been abandoned by her husband and would have died of starvation, but for the food and shelter afforded to her by the man in question, and evidently she had given her consent.

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¹⁹ Arthashastra, pp. 284-85.

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²⁰ Arthashastra, p. 290.

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²¹ Arthashastra, p. 291.

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²² Arthashastra, p. 292.

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²³ S. B. E., Vol. XXXIII, p. 177.

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Slavery and imprisonment of an adulteress was perhaps the direct consequence of a regulation of Apastamba which says, "If a young man has had intercourse with a marriageable girl, his property shall be confiscated and he shall be banished. Afterwards the king must support such women and damsels, and protect them from defilement. If they agree to undergo the prescribed penance he shall make them over to their (lawful) guardians."²⁴ It goes without saying that when the king was expected to protect them, he should keep them under strict guard and watch, and as he had to support them, he should in his turn exact some work from these unfortunate women. The Marathas kept them in hill-forts and made them work there, the last portion of Apastamba's regulation however indirectly authorises the state to hand over a misled daughter to her father (lawful guardian) when the latter makes himself responsible for her moral welfare (stands surety for her future good conduct).

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²⁴ S. B. E., Vol. II, p. 163.

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Manu's punishment for this not unnatural offence was very horrible indeed. "If a wife, proud of the greatness of her relatives or her own excellence, violates the duty which she owes to her lord, the king shall cause her to be devoured by dogs in a place frequented by many."²⁵ We do not know whether this law was ever put into practice by the ancient Hindus, it was not in use in the Maratha days. Though the Peshwas on some rare occasions condemned a troublesome rebel to be trampled to death by an infuriated elephant, we do not know any instance of a misguided woman being thrown to hungry dogs.

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²⁵ S. B. E., Vol. XXV, p. 319.

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Another punishment which Manu recommends for "a woman who pollutes a damsel"²⁶ also deserves our notice, as a similar punishment has been prescribed by Vashishtha for the adulteress herself. "If a Shudra approaches a female of the Brahman caste," Vashishtha lays down, "the king shall cause the Shudra to be tied up in Virana grass and shall throw him into a fire. He shall cause the head of the Brahmani to be shaved and her body to be anointed with butter; placing her naked on a black donkey, he shall cause her to be conducted along the high road."²⁷ King Brahmadatta of Benares had inflicted this punishment on his unfaithful queen Soshumba, as we read in the Devavataravadana of Kshemendra's Bodhisattvavadanakalpalata. It was, however, not in general use when the Marathas established their sway in the Deccan.

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²⁶ S. B. E., Vol. XXV, p. 318.

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²⁷ S. B. E., Vol. XIVI, p. 109.

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6. Slaves:

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We have read of slavery as a punishment for adultery. Let us now enquire into the rights of slaves and the law of manumission. According to Manu, "a slave cannot have any property, the wealth he earns belongs to his master."²⁸ In Maratha days a slave could not only earn on his own account but he could inherit property; in fact slaves were often permitted to purchase their liberty.²⁹ But the Maratha practice, though contrary to the codes of Manu, had the authoritative support of Chanakya who says, "A slave shall be entitled to enjoy not only whatever he has earned without prejudice to his master's work, but also the inheritance he has received from his father."³⁰ Marriage of a female slave under the Maratha law was equivalent to her manumission, and Kautilya lays down almost the same principle when he writes, "When a child is begotten on a female slave by her master, both the child and its mother shall at once be recognised as free."³¹ The Marathas only went a step further, they liberated their female slaves, whether these were married at their own instance or otherwise, with free men or fellow slaves.

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²⁸ S. B. E., Vol. XXV, p. 326.

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²⁹ Broughton, Letters written in a Maratha Camp.

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³⁰ Kautilya, Arthashastra, p. 232.

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³¹ Arthashastra, p. 233.

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7. Procedure in a civil suit:

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Civil suits were, in the first instance, tried by a Panchayat or a court of arbitration consisting of village elders. The origin of such courts can be traced to the regulations of Narada, Brihaspati and Shukracharya. "Gathering (kula), corporations (shreni), assemblies (gana), one appointed by the king and the king (himself) are invested with power to decide law suits."³² Brihaspati was of opinion that "Cultivators, artizans (such as carpenters or others), artists, moneylenders, companies of (tradesman), dancers, persons wearing the token of religious order (such as Pasupatas), and robbers should adjust their disputes according to the rules of their own profession. And relatives, companies (of artizans), assemblies (of co-habitants) and other persons duly authorised by the king, should decide lawsuits among men, excepting causes concerning violent crimes."³³ The judicial authority of shrenis, kulas and ganas is acknowledged by Shukra also.³⁴ It is clear that the Maratha Panchayat was not quite identical with kulas (families), ganas (communities) and shrenis (corporations), but it is not impossible that it was from this prescriptive right of these corporate bodies of old, that the Maratha village community, a corporate body in itself, derived its judicial powers, which was exercised by the Panchayat, subject to the sanction of the state as in the old Hindu days. Brihaspati's assemblies of co-habitants seems to be more akin to, if not the actual prototype of, the village Panchayat.

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³² Narada, S. B. E., XXXIII, pp. 6 and 7.

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³³ S. B. E., Vol. XXXIII, p. 280.

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³⁴ Shukranitisara, S. B. H., p. 185.

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The plaintiff is called Purvavadi in Marathi documents and the defendant is styled as Uttarvadi. This naturally reminds one of Purvapaksha and Uttarapaksha of the Shukranitisara,³⁵ which however stood for the plaint and the answer. The plaintiff first submitted a written statement and the defendant then submitted his own version of the case in writing. Then evidence was heard and judgment delivered. Finally the losing party had to execute a deed called Jayapatra or Yejitkhat in favour of the winner. This is the procedure recommended by the old law-givers. Narada lays down, that "the claimant, after having produced a pledge the value of which has been well ascertained, shall cause the plaint to be written. The defendant immediately after having become acquainted with the tenor of the plaint, shall write down his answer, which must correspond to the tenor of the plaint."³⁶ Brihaspati says, "The part called the declaration, the part called the answer, the part called the trial, and the part called the deliberation of the judges regarding the onus probandi: these are the four parts of the judicial proceeding. The plaint is called the first part, the answer is the second part, the trial is the third part, and the judgment is the fourth part." ³⁷

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³⁵ S. B. H., p. 196.

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³⁶ S. B. E., Vol. XXXIII, p. 24.

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³⁷ S. B. E., Vol. XXXIII, p. 289.

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The practice of granting a Jayapatra to the winner was well known when Shukra compiled his work on polity, as will appear from his description of the document. "A Jayapatra," says he, "is one that contains an account of the case or suit brought forward, arguments for and against and also the decision." Every student of the Maratha administrative system knows that this is equally true of Marathi Jayapatras or Yejitkhats.

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