Women and Their Legal Position in India During the Classical Hindu Law
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Law graduate: Sima M. Živulović* Women and their legal position in India during the Classical Hindu law 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 Durga 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 Vedas, 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 Puranas, 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 Puja (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, Hindu mythology, 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 Durga Puja 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 Ramayana, in which we can find two important instances of were Sita used her piousness to prove her purity to Rama 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 Diwali 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.