Law graduate: Sima M. Živulović*

Women and their legal position in India during the Classical

period

Abstract: The paper’s purpose is to give an outline of women and their position including and limited to their legal, historical, societal – economic, and cultural to understand the contexts of legal traditions. While having an outline of their general position (with short explanations of certain differences or exemptions) a special accent will be put on the position and role of women in ancient

Hindu family law, inheritance law, commercial law, and differences between rights of male and female children. The sources of law will be analysed to understand the spirit of the law and teachings about the women (theological and non- theological stances) of the Classic Hindu law period.

Key words: legal traditions. - general position. - role of women. - classic Hindu law period.

1. Introduction

As the title of the paper suggests it will mostly give an outline of the social-economic and legal position of women, who lived during the first period of Hindu law, better known under the operational term “Classical Hindu law”. The definition is an all-encompassing and broad term that includes an array of diverse legal practices of Vedic traditions. The period started in 1750 BCE and ended in 1771 CE. The paper will partially cover: Early Vedic or Rig

Vedic period (1500 BC - 1000 BC), the Epic or Later Vedic period (1000 BC – 600 BC), the

Jainism and Buddhism period (600 BC – 200 BC) and the Age of Dharmaśāstras,

Manusmmriti aka Laws of Manu (200 BC – 647 AD).

*MEI student, University of Belgrade Faculty of law, master studies, [email protected]. The title has been approved for the conference Iustoria 2020, which has been postponed due to the novel CoViD-19 virus and it will be orally presented at the conference. The methodology of the author will be a top to bottom approach, in other words, he will view the position of women in their various roles in their societies and the sources of law, including the: symbology and portrayal of and Yama as dual gods of justice, the active and passive religious rights, the live and rules of conduct in the royal court, sexual rights, the types and positions of different courtesans, the limitations and rights of women belonging to different castes, the penance, and punishment of women. The chosen methodology aims to explain the sources of law, not only as static legal traditions of this period but also to portray them as lively and variable beliefs and their historical, social and cultural contexts during the very same period.

A special accent will be equally put on both the legal position and the role of women in the family and on the infamous ancient Hindu practice known as saati or suttee. The former will entail showing her position in the family unit, the existence or non-existence of her dependency from her male counterparts, the right to own or sell property, ability to participate in or do commerce, her rights and duties to the family, inheritance claims and comparing how female and male children differed in several key areas (such as education and religion). While the latter will try to trace the development of saati, what were the justifications in both legal and sacral sources, explain different types of saati and differentiate practices similar to saati.

The author used the following sources of law: a selection of different , early Upanisads,

Dharma, Manusmmriti, and Dharmasastra.

2. Clash or duality of the gods of justice?

The first mention of the masculine god of justice Yama can be found in three hymns in the

Rig Veda, but of the three the XIV hymn shows his two rules; the first being protection of king through Yama’s two dogs (Saramā's offspring) and Yama to watch over the king's realm and his countryman via the same to dogs which answer to him and they serve to achieve fair existence.2 But unfortunately, the sacred texts themselves and his role as good of justice should be interpreted via how religious practice represents his role, the Yamapañcaka (five days of Yama) shows us his additional role as the god of death in other words as the protective god and guide of the souls in the afterlife.3 But in the , his domain as the god of justice has been increased to judge the soul of men and rule the hell in which the wicked suffer.4 As we can conclude his domain of justice mainly concerns overseeing enforcement of the law and fair existence, also he oversees the enforcement in the realm of the living and the dead.

While Durga the goddess of justice has an active role in the enforcement because her creation by other male gods is mainly attributed to subduing evils which they cannot, in other words, her will and presence is the ius puninendi.5 On the other had Durga (festival devoted to Durga) besides celebrating her victory against the greatest evil, its also a way to pay homage to her famine nature of the goddess and instead of being a bling justice, she represents that justice can only be administered if a person overcomes obstacles in judgment

(even the gods which disrespect others or their traditions are punished by going to hell for a certain time) to just in enforcing justice.6 Again using the former method we came to the same conclusion, her dominion as the goddess of justice is mainly actively enforcing justice, but we must have in mind even if she was created by male gods, Durga introduces that law must not be blind, but rather passionate and that even a god must overcome the obstacles within his judgment. This can seem to a western reader as possible conflict, but this the principle of

2 Ralph H. Griffith, The Rig Veda, Global Grey ebooks, London 2018, 876 – 878. 3 Bal Gopal Shrestha, The Sacred Town of Sankhu, Cambridge Scholars Publishing, Newcastle 2012, 328 – 329. 4 W.J. Wilkins, , Vedic and Puranic, Global Grey ebooks, London 2019, 81 – 84. 5 David R. Kinsley, Hindu goddess – visions of divine feminine in the Hindu religious traditions, University of California press, Berkley 1998, 95 – 97. 6 Hillary P. Rodrigues, Ritual Worship of the great goddess – liturgy of the with interpretations, State University of New York press, New York 2003, 35 – 38. Linga and Yoni in the Hindu pantheon; the closest principle would be Ying and Yang from the Buddhist tradition; Durga and Yama are at the same time spouses and one being.7

3. Active and passive religious rights of woman

During the Early Vedic period they were able to study the sacred scriptures and they had the opportunity to both be sages or seers and even contributing to writing new Vedic mantras

(hymns) ; but when compared to Epic Vedic period a shift can be noticed were women should glorify the practice of partivratya (devolution to the husband) and they should be religious thought only if its purposes for the betterment of her family, also the existence of female sages disappeared and it was changed for devadasis (girls which were psycho-sexually devoted to the gods and they were bound to serve priests and pilgrims during their entire life hood.8

The period of Jainism and Buddhism women were again given the ability to study religious texts (the princess as part of her education had to study religion) and nuns (also during this period they also contributed to creating new mantras), the only difference, when compared to first period, was that if they were sharp and witty in intellect they could run their monasteries (they were called sanghas).9

Law of Manu brought a new period with this fixed rule: ,,No rite is performed for women with the recitation of ritual formulas—that is well-established Law. Without strength or ritual formula, women are the untruth — that is the fixed rule”.10 We must take things fixed rule with a grain of salt due to the fact of , in which we can find two important instances of were used her piousness to prove her purity to through two religious rites, the

7 Jayaram V, Ying and Yang and Hindu connection, Hinduwebsite, https://www.hinduwebsite.com/history/yin- and-yang-and-the-hindu-connection.asp, accessed 03.05.2020. 8 Bhaswati Pal, The saga of women’s status in Ancient Indian civilization, Miscellanea geographica 3/1984 vol. 23, 180 – 182. 9 Ibid, 182. 10 Patrick Olivelle, Suman Olivelle, a critical edition and translation of the Mānava-Dharmaśāstra, Oxford University Press, New York 2005, 191. first being the trial of fire and second being passed judgment by mother earth (if she is not pure the earth would swallow her whole.11 The examples only cover the right of a husband to call upon a wife to prove her marital purity by choosing to give a temporary passive religious right, but a real-life festival would prove otherwise. But the associate professor Neelima

Shukla -Bratt explains that during the last day of the festival when brothers return to their homes they must bring gifts to their sisters and the sister prepare the food and recite mantras to wish their brothers receive good health ; while the second examples are the

Brothers second festival were women in behalf of their brothers and it is rooted in a legend that the practice saved a sister dying brother from Yama.12

Both the anthropological and literal sources prove even the Laws of Manu had a fixed rule about, it did recognize that de facto passive religious right could be accepted only if they were related to family or preserving marital purity. The only question that needs be answered what was the position of the Laws of Manu in a hierarchy of legal sources of classic Hindu law; the before mentioned associate professor Neelima states it is not the only source and it’s not the highest; we can agree that in some areas it had the goal of codifying certain norms, while not forbidding certain areas to practice different variants of honoring the gods or indirect participation of women in religious rites through honoring their obligations to their husbands, family or brothers.13

4. The lives and rules of conduct for women in the royal court

Unlike the Salique rules, the period of Classic Hindu law recognized several types of queens: the first was queen Tribhuvanadevi a sovereign rule before and after the death of her husband, de facto or de jure heads of government, regional princess had a right to ascend to

11 Nina Paley, Sita sings the blues, Question copyright, YouTube 23.10.2009, accessed 03.05.2020. https://www.youtube.com/watch?v=RzTg7YXuy34. 12 Neelima Shukla -Bratt et alia. , through its scriptures, Harvard Ex, Coursera, accessed 03.05.2020. https://www.edx.org/course/hinduism-through-its-scriptures-2. 13 Ibid. the throne if there were not married (the only exemption can be found in the time of Gupta when Chandragupta I jointly ruled with his queen Kumadrevi, regents who took administrate power if the princes was a minor or captured and dowager queen (the most notable queen

Massaga fought Alexander the Great after the king died in battle).13

While the previous classical period was promising, the medieval period brought certain changes queens were usually queen dowagers defending against the sieges of the sultans

(participation and commanding the army during defensive and offensive battles, in other words on the ground commanders and warriors); whilst the last period of the Classic Hindu law saw the queen Anubai Ghorade having the longest reign of the regent queen which lasted from 1745 to 1775 and the most efficient administrative rule.14

While it was noteworthy to point that education of women belonging to the court was important for the daughters of kings and high dignitaries.15 Northern and Southern India strongly differed when we compare the existence of female administrators, the former had had none, but the later recognized queens as local rules, women, in general, had a strong presence mostly in accounting and recording the affairs of the kingdom; there were 13 schools for girls and 21 schools for boys and the number of schools and the huge percentage proved that the upper-class women were educated and active in the administrative branch of government, but interestingly enough they were allowed to debate in public assemblies and forbidden to enter

Sabhas were man gathered to make political decisions or due leisure actives (we must have in mind after their public participation got lower after the Epic Veda period).16

13 A.S. Altekar, The position of women in Hindu civilization – prehistoric times to modern day, Culture publication house Benares Hindu University, Bernares 1938, 218 – 220. 14 Ibid, 220 – 222. 15 Harmut Scharfe, HdO – Education in Ancient India, Bril, Amsterdam 2002, 210 fn. 83. 16 Shashi Punam, The role and position of women Ancient society to modern society in India, ResearchGate may 2017,accessed 04.05.2020 https://www.researchgate.net/profile/Shashi_Punam2/publication/316918695_The_Role_and_Position_of_Wom en_Ancient_Society_to_Modern_Society_in_India/links/59188373a6fdcc963e869a50/The-Role-and-Position- of-Women-Ancient-Society-to-Modern-Society-in-India.pdf . 5. Sexual life and the rights of women

To understand this topic, we must make a difference between a woman in her in sexual relations and surata (pleasures of sex).17 The former is best explained by the legal provision concerning rita (with it begins and ends): ,,A menstruating girl in a father's house is a heavy sin for him; the daughter is now dedicated to the divinities of married slate”.18 This speaks volumes and especially the father will marry off his daughter before rita happens and her husband can only take from her home when she is sexually mature (sexually ripe), the epics do not portray or promote child marriages.19 But during pre -Chaitanya period and Purdah system child marriage and consummating the marriage took place right after the first rita.20

But after her rita has ended, she has the right and duty to procreate, otherwise or if she does not follow her obligations she is deemed unclean and full of magic and dread that can harm anyone.21 Evidently in literature usually a woman during her rita is portrayed as seducing disciples to commit the dreadful crime of adultery with the teacher's wife.22 Even if the unclean women are not married, it is strictly forbidden to have intercourse with her; the only punishment concerning the man and it states he must wear for six months a wet garment and sleep on ashes; while being protected she still must not be in the neighborhood during the ancestral offerings and offerings (usual food) must not have been seen by the women during her rita.23 If the women do try to have intercourse during this period, the punishment is more drastic then the men and the provisions states : ,,The woman who does wrong with Candala

(pariah) must confess her guilt before the gathering of ten , then fall a day and

17 See Johann J. Meyer, Sexual life in Ancient India – a study in comparative history, The Standard literature Co ltd, Calcutta 1952, 214 – 258. 18 Ibid, 216. 19 Ibid, 216 – 217. 20 P. Srivastava, Status of Women in India: Ancient, Medieval and Modern, Sociology Discussion, accessed 04.05.2020 https://www.sociologydiscussion.com/status-of-women/status-of-women-in-india-ancient-medieval- and-modern-sociology/13526. 21J. J. Meyer, 219. 22 Ibid, 222. 23 Ibid, 225. night plunged up to the neck in well with cow-dung, water, and mud, then shave her head quite bald and live outside the house practicing further mortification, and cleansing acts up to her period; then she is clean.. but, must furthermore give food to Brahmans, and bestow a pair of oxen”.24

The later mentioned part of this topic has that mainly surata is a healing remedy for men and increasing the sexual conquest, while any other unnatural intercourse with a wife will be punished by having his forefathers live in his seed, he would even be killed or even worse if he has unnatural desires will be punished by expulsion from his caste (interestingly the legal source any forbidden sexual intercourse equate to killing).25 There is no better way to explain the lack of active sexual rights then to quote provisions concerning touching a married woman: ,, here is no greater sin than to touch another's wife, 'this punishment will fell upon on him (the same for killing a Brahman) "as a robber of another's property”.26 In other words property of man (being her father who decides whom she may marry or her husband).

But both the Kamasutra and women’s introduced the obligation of the husband that the intercourses must be pleasureful for the women (and codified the allowed and natural intercourse), but even if women call upon the dharma to choose when they want to make intercourse, their husbands are instructed by the commentaries: ,, If a man is begged by a woman for dharma’s sake: -Pour in the seed! -”.27 The role of the Kamasutra besides being known for its sensual pages, should be understood as a ritual where the spouses change their roles for a brief moment and for a quick moment the female becomes a male, while the male becoming a female must ensure his spouse reaches her limit before him.28 Even if the author

24 Ibid, 227. 25 Ibid, 238 – 242. 26 Ibid, 247. 27 Ibid, 257. 28 Wendy Doniger, on the Kamasutra, Journal of American Academy of Arts and Sciences spring 2002, 127. of the Kamasutra was a male author, his attempt had a similar goal to what queen Eleonor

(spouse of Henry II) and how she stealthy placed chivalry in the minds of her subjects through poetry with her ladies in waiting.29

6. Types and position of courtesans

To understand a position of courtesans it necessary two mentioned classifications, the first can be found in the :

(i) The common whore (kumbha-dasi) – drawn from menial servant class ;

(ii) The attendant (paricharika) – daughter of courtesan married in early youth (her husband after one year loses his right of exclusivity, but attains the first option during particular nights)

(iii) The secret adulterers (kulata)

(iv) The open adulterers (swairini)

(v) The theatrical artiste (nati)

(vi) The woman artisan (silpakarika) - iii to v where women whose husbands were washermen, florist, perfumer (any of other professions), the husband must approve her decision to become iii to v,

(vii) The deserter-wife (prakasha-binashta) – as the name implies a woman which willing left her husband and become a concubine for another for financial gain

(viii) The beautiful body-seller (rupajibi).

(ix) The courtesan (ganika) -the viii to ix- is limited to quality.30

29 The School of Life, History of Ideas – manners, YouTube 26.02.2016, accessed 04.05.2020 https://www.youtube.com/watch?v=JCTzbc76WXY. More importantly the position of the royal courtesans is intentionally left off, because her position was close to semi slave and a public servant (having a yearly salary of 1000 ganik), the position was hereditary in the event of death the royal courtesan’s daughter takes her mother position; the only way she would become free if the king allows another man to pay for her freedom and she automatically becomes his wife ( also for the son to receive any inheritance, he must buy the property or item from the king) ; the punishment for kidnapping or raping or anything to endanger the life of a royal prostitute the offender would pay around

3000 or more, while the highest punishment would be given to those bring harm to her or her daughter (the amount of ganik depended on her position and status), these penalties are stricter when compared to other types (others will get punishment by paying if they do anything against the will of the courtesans, while voluntary intercourse with her underage daughter is punishable via a financial penalty of 2000 ganik).31

The previous period covered the pre Buddhism period, Buddhism introduced a way out for courtesans to return her a dignifying state only if she realized of material possession and goes through rebirth, but if she did not choose the path of Buddhism then the believers would not show any respect to her.32 After the Muslim invasions, the Koran was applied as sources of law and even if forbid prostitution, not having the ability to buy a sexual prisoner for the pleasure for his son encourage the families and the lower economic classes to participate or follow the example of the ; before the end of the Classical Hindu law period, the report of Abd Er-Azak shows us the existence of lively use of the services of prostitutes (public houses), the darab khanehs (military barracks) was the place where the Muslim soldiers were given to enjoy the company of courtesans (only within the walls of the military barracks and

30 B. N. Basu, , Kama Society of London and Benares, London 1883, 254. 31 Fernando Henriques, Prostitution and Society a survey – volume I : Primitive, medieval and oriental, Panther, London 1965, 134 – 135. 32 Ibid, 160. this was a major part of their salary) and the funds for their enjoyment were gathered by collecting taxes from the very same public houses.33

7. Limitations and implications of the caste system

The very first mentioned of the caste system can be found in the Rig Vedas (but it’s contested by most to explain the genesis of the cast system rather than creating obligations in forms of rules), but the provisions of their obligations are extensively regulated in the law of

Manu and Dharmasastra and we have to emphasize the fact that the caste system of the

Classic Hindu law period mostly was a meter of ritual purity of class and when compared to today's extreme caste system the old was enable regardless of gender to move up the caste system.34 We recognize four caste (this paper will not include the many sub-categories) and they are: the pure and aesthetic (brahmans), the nobility (ksatriyas), the merchans (vasiayas) and the cultivators (sudras), the exclusively of the groups is not complete because during both the ancient and medieval period sudras were permitted to study and listen to the lessons taught by the brahmans.35

For us, the untouchables are a broad and artificial term for all tribes which are not a member of any of the four castes, the position of women who are branded as the untouchables have dreadful provisions which dictate the limitations they faced, such for example concerning marriage to an untouchable if that were to happened the husband become an untouchable too and their offspring (while if a higher male caste member marries a lower caste female, he looses one level of his status within a caste); it gets worse they must not be in the same place or room with other castes or eat at the same place ( certain foods which were found impure or non- exclusive caste food, were the only thing they would eat) or they were

33 Ibid, 168 – 169. 34 Lumen Candela, The Caste system, accessed 05.05.2020. https://courses.lumenlearning.com/suny-hccc- worldcivilization/chapter/the-caste-system/. 35 Geni’ichi Yamazaki, ,,Social discrimination in Ancient India and its transition to the Medieval period”, Hiroyuki Kotani (eds), Caste system, untouchability and the undressed, Manohar, New Delhi 1997, 9 – 10. prohibited to walk alongside with the other castes and even touching them by other members of the groups was harshly penalized by publicly punishing and shaming the group member

(but this strictly applies regardless of gender).36

8. Women and punishment

The most notable difference concerning the sexual crimes and the punishment can be found in comparing two particular crimes, the first being a lover of an elder or teacher’s spouse (the wife of the elder will no receive any punishments, while the lover can either by becoming a spontaneous Mandarin eunuch or embracing red hot metal caldron (while if he commits adultery, he will only be punished by branding him with the shape of the female organ) and the second situation is taking the virginity of a girl in this situation a male would lose the fingers which he used to commit the crime, while the women who do that crime she will immediately be shaved and the would either loos her fingers or paraded on a donkey ; here the Laws of Manu show that the body of women is gentle and still depending on the situations leaves the ability to give a similar punishment like a man or public humiliation as a lesser punishment.37 When choosing a punishment if the law enables alternatives the following elements are taken into account (and consequently only them) such as caste, wealth and age of the criminal (but while a judge will not take into account the gender, the lawmaker did the opposite as seen in the examples introducing different punishments for female criminals which committed certain crimes).38

Interestingly adultery with the queen is not a crime and we cannot find it in the Laws of

Manu, but even if it’s not a crime there were two schools of thought either death by fire or

36 Louis Dumont, Homo Hierarchius – the caste system and it’s implications, Oxford University press, Oxford – New York 19992, 123 – 143. 37 Patrick Olivelle, Penance and Punishment: Making the body in criminal law and social ideology of Ancient India, Journal of Hindu Studies 1/2011 vol 4, 29 – 31. 38 Ibid, 32. becoming a spontaneous Mandarin eunuch (here also the female is not punished).39

Defecating on the highway or in public places was punished by paying a fine of 2 panas, but pregnant women and infants (also older people) a freed from paying the fine and they only request to remove or clean what they left behind.40 As we saw the lover and adulterer will be punished, but he will not be punished for witchcraft if used,, merely to arouse love in an indifferent wife, in ·a maiden by her lover,. or in a wife by her husband is no offense”.41

From a certain point of view deserting an obedient and virtuous wife is likened to being a thief, but even if she is not, the deserting husband or father or son will be fined.42 A change can found in the punishing women and man who committed premeditated murder, if a man poisons another he will suffer death by drowning, while a difference is made when a woman kills any man and when she kills her husband or preceptor or offspring, in the former, she will be drowned (if pregnant, she will be drowned one month after the delivery) while in the later she will be torn by bulls, but on the other hand, a man a will be impelled if her kills anyone with a weapon and if he kills men and women with violence (but if he did it intentionally he will be killed quickly).43Two approaches to punishing abortions can be found in the Laws of

Manu, if it has done to the female servant the person will be fined 100 panas, while if women which procure for themselves or others medicine will be exhaled and those who cause them will be fined 100 karhspanas.44

39 Ramaprasad Das Gupta, Crime and punishment in Ancient India – Book II, Book company, Calcutta 1930, 7. 40 Ibid, 32 – 33. 41 Ibid, 47. 42 Ibid, 51. 43 Ibid, 57. 44 Ibid, 60.

9. Women and their position within the family and outside of it

To clarify the earliest (and the later which came, have some difference but not so notable) have two important rules; the first recognized role is her importance of procreation for security immortality for her husband (immortality by the teachings of the brahman can be only achieved by having male offspring, but to contrast this though another possibility is presented by female figures within the writings by which immortality can be even reached by not having children) and second being and lastly to be subservient this can be concluded from the wording women to have the ability and right to speak up, but words said by women do not have the same bearing as men’s.45 The women’s (strīdharma), strictly defines the position of women in the following provision: ,, Even in their own homes, a female—whether she is a child, a young woman, or an old lady—should never carry out any task independently ( na svātantryeṇa ), As a child, she must remain under her father’s control; as a young woman, under her husband’s; and when her husband is dead, under her sons’. She must never seek to live independently ( na bhajet strī svatantratām ). She must never want to separate herself from her father, husband, or sons; for by separating herself from them, a woman brings disgrace on both families”.46 While the legal status of women within the provisions of the Apastamba Dharmusutra and those of Gautama’s Dharmusutra both show that women have no independency of her legal status and her link with her husband belongs to a guarding model ( administering punishment towards of cheating wife was in the

45 Brian Black, The Character of self in Ancient India: priests, kings and women in the early Upanishads, State University of New York, New York 2007, 134 – 135. 46 Alf Hiltebeitel, Dharma – its early history in law. religion and narrative, Oxford University Press, New York 2011, 338. former Dharmustra done by the husband in private, while the later Dharmusutra the king publicly did it instead of her husband).47

Before the medieval period, two forms of the right to women to have property were usually that women could only have the right to property, the first form were 1) to gifts and bequests from relations; (2) gifts and bequests from strangers; (3) property acquired by self exertion and mechanical arts; (4) property purchased with stridhan (; (5) property acquired by compromise; (6) property obtained by adverse possession; (7) property obtained in lieu of maintenance; (8) property obtained by inheritance; and (9) share obtained by partition ; also

4) was divided into the sauadayika (gifts from relatives of both sides (parents and husband), and which she acquired by self exertion and mechanical arts during her maidenhood or widowhood, over which she had full rights of disposal) and the non-sauadayika (gifts from strangers and property acquired by self-exertion, mechanical art, and so forth as a married woman, over which she had no right of alienation without the consent of her husband), her husband also had the power to use it”48

During the medieval period, women only received property rights by inheriting from male family members ( husband or father in law) and the second or by the share received upon the partition of property ( this module of property rights had two limitations, the first being she was not able to ordinarily alienate her share and the second limitation stated upon her death her share will give to the heirs of the last full owner; but the customary law did create numerous clasus when a woman could alienate her estate by herself such as legal necessity, for the benefit of the estate and for the discharge of indispensable duties (marriage of daughters, funeral rites of her husband, his shraddha and gifts to Brahmans for the

47 Stephanie W. Jamison, ,,Women: strīdharma”, Patrick Olivelle, Donald R. David Jr, Gavin Flood (eds), Hindu law – a new history of Dharmasastra, Oxford University Press, New York 2018, 139. 48 Debarati Halder, K. Jaishankar, Property rights of Hindu women: a feminist review of succession of ancient, medieval and modern India, Journal of Law and Religion 2/2008 volume 24, 668 – 669. salvation of his soul; that is, she can alienate her estate for the spiritual benefit of the last owner, but not for her spiritual benefit).49

When we take into account the inheritance claims of women, the Dharmasutras paints a terrible picture only the four generations of the direct descendants can inherit the de cuius

(only male), women could only inherit if the sonless father can use the formula ,, My daughter is my son” to turn her into a putrikāputra (considered equal to an aurasa son) and she ultimately becomes the sole heir of mother’s father, unless, after his birth, her father also has a natural son, in which case both sons share the inheritance equally.50 The best way to answer the question of female children and her obligations in the family can be summed up by the thoughts of the brahmans: ,, A son is a blessing, but a girl is a curse and also she is a nuisance (but under the direct control and obedient to all males from her father and brother to her husband and his male relatives) , she is sufferance to the home until she is given upon for marriage”.51 While economic rights of women, mainly when into the position that she was a commodity, prostitution as we in earlier parts of this paper could enable women to receive payment, in the case of royal courtesans they would receive a larger yearly salary, education, receive gifts (and sell them or give them) and even used as spies (to gather information from inside and outside spies or enemies of the state) and dowry was viewed as maintenance of her

(the amount mostly depends on her caste).52 When a comparison is made for females and male children regarding religion and education it is advised to read chapters 3 – 4, because it indirectly covered in those parts of this paper.

Before starting any analysis about saati, we must revisit the economic rights of women who become widows, became both financial liabilities and menaces, to stop her from

49 Ibid, 671 – 672. 50 Ludo Rocher, Inheritance: dāyabhāga, Patrick Olivelle, Donald R. David Jr, Gavin Flood (eds), Hindu law – a new history of Dharmasastra, Oxford University Press, New York 2018, 165 – 168. 51 Sukamari Bhattacharji, Economic Rights of women of Ancient India, Economic and Political Weekly 9,10/1991 volume 26, 507. 52 Ibid, 508 – 511. alienating the inherited part they would remarry her (arrange a marriage) and to have joint property rights (between the widow and her new spouse), to protect any man from marrying a widow and the family of the dead husband they choose the following solution; if she had no husband (read as: lost or does not have one) she should be taken care of father, mother, brother, mother in law, father in law or son, if not she will be an object of censure, but a difference is made for those which are disappeared and it lasted 8 to 10 years then she could remarry and even if people which are listed as having an obligation to take care of the widow are dead she is left with the possibility of adopting a child on whom she can financially lean on.53 Saati or suttee is not a custom or practice rather an alternative right of widows as we can see in the following provision of the law book of Brshaspati (written VI or VII century ad):,, 1 A wife is considered half the body of her husband, equally sharing the result of his good or wicked deeds; whether she ascends the pile after him, or chooses to survive him leading a virtuous life, she promotes the welfare of her husband”.54 The Laws of Manu and the Parsara’s added a religious aspect to it and referred a religious aspect promising the position of the brahmans if she either chooses the life of chasity or follows her husband.55 But it would seem by reading this passage: ,,A woman of the Brãhmaça caste (who) follows her dead husband does not, on account of suicide, lead either herself or her husband to heaven”, that saati and it’s afterlife rewards are only given to non- caste.56 It is important to point out that incidents of voluntary saati could be found either done by the kings or queens when they become a widow ( they usually spoke a formula I will die with .57 Saati can be also viewed as a possibly extensive and broad interpretation of oath of allegiance given to the queen, where an officer immolated with the dead queen and for doing this his family was

53 Ibid, 509. 54 Sakuntala Rao, Suttee, Annals of Bhandarkar Oriental Research Institute 3,4/1932-1933 volume 14, 225. 55 Ibid, 227. 56 Ibid, 230. 57 Ibid, 235 – 238. rewarded by the state and king.58 We must not exclude the last component which changed saati as a practice and that is the influence of epic poem Pandmawat, in which the princess

Padmavati and her the court ladies committed saati not to mourn their dead husbands, but rather to protect their dignity and honor because if they were captured by the Rajput warriors they would become sex slaves; the combination of protection of the families honor, lack of literacy and economic hardship developed saati into a dangerous custom which does not resemble its origins or roots based on previous legislation.59

10. Conclusion

Chapter 1 – 8 goal was to introduce the reader to the general position and development of the position of women during different periods and give the most important outlines of their rights in several key areas such as feminine principle in Hindu pantheon, duties and role of women in the royal court, religious rights and lives of women, sexual or reproductive rights of women, the status and types of courtesans, the extent of the caste system and its many limitations and special provisions of the criminal code of Ancient India which either contained the word women as an object protected by the law or what punishment will give for women for certain crimes.

The last chapter concentrated on the position of women in family life during the three stages of her life, inheritance claims, property rights, and a special accent were put on proving that saati was not only practice or custom but rather strictly defined by past laws with leaving the window with a choice. Also, the meaning and symbology of saati have several parts to it depending upon the context and spirit of the time.

58 Ibid, 239. 59 Hinduismglance’s blog, Origin of sate or self – immolation, accessed 09.05.2020. http~s://hinduismglance.wordpress.com/origin-of-sati-system-or-self-immolation-in-india/.

Žene i njihov pravni položaj u Indiji tokom Klasičnog perioda Hindu prava

Rezime: Svrha ovog rada je da prikaže siže žena i njihovog položaja s usređenošću na pravni, istorijski, socijalno- ekonomski i kulturni položaj u društvu radi razumevanja smisla pravnih tradicija ovog perioda. Dok će se glavnina teksta ticati generalnog položaja (s kratkim pojašnjenima o razlikama i izuzecima), posebno će se posvetit pažnja položaju i ulozi

žena u drevnom Hindu porodičnom pravu, naslednom pravu, trgovinskom pravu i razlika u pravima koje poseduju ženska i muška deca. Izvori prava će biti analizirani radi poimanja duha zakona i doktriranim učenjima o ženama (svetovnim i ovozemljskim mišljenjima)

Klasičnog perioda Hindu prava.

Ključne reči: pravne tradicije. - generalni položaj, - uloga žena. - klasičan period Hindu prava.

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