15.06.2019

Indian marriage and family law in the laws of manu. Regulation of marriage and family relations in ancient India - state, law, economics, history

Assignment: Compare India with Russia - family law (laws).

View Indian Legislation.

Answer:

One of the most ancient civilizations in the world was formed over four thousand years ago in the Indus Valley, with its centers in Harappa and Mahenjo-Daro. Archaeological excavations made it possible to establish that even in the III millennium BC. here there were large cities - centers of handicraft production, developed agriculture, trade, property stratification of the population

At the beginning of the IV century. India consisted of many small and larger states, headed by rajas, relying on the privileged castes of brahmanas (priesthood) and kshatriyas (military nobility). In 320, one of these rajahs of northern India, Chandragunta, conquered neighboring rulers and founded a relatively large state of Gunta in the Ganges basin, which existed until the beginning of the 6th century.

Indian society of the era of the Gunta state combined the features of communal orders with features of a slave society and with features of nascent feudalism. In the social system of India, the system of castes was preserved, enshrined in its time by the laws of Manu. Rural communities, headed by chiefs and other officials, were of great importance in the life of society. The rural community consisted of several tens or hundreds of families, where agriculture was combined with handicrafts. The early manifestations of feudalism during the reign of the Gunta dynasty were reflected in the formation of a class of military service people who received land for their service with the peasants sitting on it. At the same time, the structure of the feudal hierarchy was formed, headed by the king-maharaj, on whom the smaller princes-rajas depended. The dominant religion was still Brahmanism, but only in its new form - the form of Hinduism, which included some elements of the Buddhist religion with its doctrine of non-resistance to evil, asceticism, and belief in the transmigration of souls.

The Harappan culture of the Indus valley, which existed several centuries earlier than the Indo-Aryan, did not have a significant impact on the historical fate of the peoples of the Ganges valley, with which the emergence of one of the original civilizations of the East that has preserved its cultural values to this day is associated.

In the sources of the law of Ancient India, a special place belongs to the dharmashastras - collections of religious and legal precepts. The norms of behavior are simultaneously filled with religious, moral and legal content. The emergence of dharmashastras is associated with social-class stratification. The first mention of the laws of Manu dates back to the 9th century BC. The laws of Manu are known to modern researchers only in the lists of the 3rd century BC.

The laws testify to the deep property stratification of Indian society. Despite the preservation of communal and patriarchal relations in Indian society, private property has developed significantly. The objects of private property were: slaves, livestock, grain, household inventory. Private ownership of land did not become widespread in ancient India, but the laws of Manu testified to property differentiation in the community and the emergence of individual land holdings.

In accordance with Chapter 8, it talks about boundary disputes between different villages, as well as disputes between individual peasants.

In accordance with Chapter 10, Article 115, seven legal methods of acquiring property are listed: inheritance, receipt as a gift or find, purchase, conquest, usury, performance of work, receipt of offerings. While the first three methods were available to all castes, the fourth was only for the Kshatriyas, the fifth and sixth for the Vaisyas, and the seventh was considered the exclusive privilege of the brahmanas.

Unlike the laws of Manu, Russian legislation regulates issues of property law by the Civil Code of the Russian Federation in accordance with the content of Art. 216, which says that the real right is a right that secures the interest of the rightholder by directly influencing the thing, securing the relationship of the person to the thing

Ownership is fundamental, among other property rights. All other property rights are derived from it and are limited property rights.

The right of economic management is the right to own, use and dispose of property transferred to a legal entity by the owner, within the limits established by the constituent documents of this person.

One of the limitations of this real right is the obligation to agree with the owner of actions for the disposal of immovable property. The owner has the right to dispose of the property transferred by him for operational management, but not used for its intended purpose.

In turn, considering the Indian marriage, family and hereditary relations - "the eternal dharmas of husband and wife" - it should be said that a number of chapters are dedicated to them in the shastras, in 3M mainly chapters III, IX, in Art. - Chapters 3-7 of Book III.

According to Art. 12, in the first marriage, the twice-born is recommended (the wife) of his varna; but those who act out of love may have wives according to the direct order (varnas).

According to Art. 13, for a Sudra, a Shudra woman is prescribed, for a Vaisya (Shudryanka) and her varna, for a Kshatriya - those (both) and his (varna), for a brahmana - those (three), as well as his (varna).

Article 14, says that not a single legend mentions a wife of a woman from a brahmana or a kshatriya, even in extreme circumstances.

According to Art. 17, a brahmana, having erected a sudra woman on a bed (after death), is thrown into hell; by producing a son from her, he is deprived of brahmana.

All the prescriptions "about the dharma of husband and wife" testify to the humiliated, subordinate position of women in ancient Indian society, in large, undivided patriarchal families-clans that have survived here in an unshakable form, in which the head of the family possessed tremendous, almost unlimited power. In the sphere of family relations, the influence of socio-cultural traditions and the norms of customary law was most clearly manifested. This is evidenced by the indication of eight contradictory forms of marriage that were common in India and which the shastras could not ignore. The first four, encouraged by the brahmanas, were mainly limited to the father's marriage to his daughter "endowed with jewels" (with a certain dowry). Such, for example, is the form called "Brahma" (3M, III, 27), which together with the stirrups of the following ("daiva", "arsha", "prajapatya") is opposed to the marriage "asura" - the purchase of the bride, recognized but condemned along with love marriages, without the consent of the father and mother ("pandharva"), with the abduction of the bride ("rakshasa") and violence against her ("paisacha"). As a result, all these forms were reduced to the purchase of a bride, a future worker in the family. It is no accident that in the sastras the first four forms of marriage were prescribed for the brahmanas and kshatriyas, the vaisya and the sudra were prescribed the marriage union with the ransom of the bride. A marriage with bride kidnapping, which apparently ends with the same ransom, which is in direct conflict with its other forms, is a clear relic of primitive society.

There were many such contradictions caused by the inclusion of archaic norms of customary law in the sastras. The proclamation, for example, of the day and night dependence of a woman on men (father - in childhood, husband - in youth, son - in old age) (ЗМ, IX, 2,3), was side by side with the statement that the mother is a thousand times more respectable than the father ( ZM, II, 145). In 3M, traces of polyandry can be found, when brothers had one wife, whose child was considered the son of all brothers (IX, 182).

The main purpose of a woman was considered to be the birth and upbringing of children, especially sons, on whom the obligation to perform memorial rites for deceased ancestors fell. Offspring, like livestock, was recognized as the main type of wealth. By virtue of this, the mother's husband was considered the legal father of the child, regardless of who he was in fact. In this case, a woman was equated with domestic animals, slaves, whose offspring belonged to the owner (ЗМ, IX, 52 - 55). It was also allowed, although it was considered a sin, the sale of a wife and children (ЗМ, XI, 69). The sale of sons did not, as a rule, entail turning them into slaves. Sons donated and sold in extreme circumstances (apparently to childless families) received all the rights of direct relatives in new families. The wife was considered not only the property of her husband, she was, as it were, a part of him. It is no coincidence that even a sold wife was not freed from her husband (3M, IX, 46), and the right to her, in the mind of the ancient Indian, was retained for the deceased husband. Traditional attitudes that have survived the centuries underlie both the prohibition of remarriage of widows (ЗМ, IX, 64) and the custom of self-immolation of widows at the burial of their husbands ("sati").

In the event of the death of a childless husband, the wife, at the request of his relatives, had to give birth to a son from a brother-in-law or another close person (ЗМ, IX, 57-65), although this archaic norm of customary law was also only allowed, but not encouraged and was called in ЗМ dharma, “ characteristic of animals "(IX, 66). Polygamy of men was also discouraged. But the husband could bring another wife into the house, if the first was not distinguished by virtue, was committed to drunkenness, was spiteful or wasteful (ЗМ, IX, 80).

The duty of a wife is obedience and respect for her husband. “If the wife does not give birth to children, another wife may be taken in the eighth year, if she gives birth to children dead - in the tenth, if she gives birth only to girls - in the eleventh, but if she speaks rudely - immediately” - written in 3M (IX, 81). A fine for an obscene woman could be replaced by flogging in the marketplace. This punishment was aggravated by the fact that the chandal (untouchable) should have flogged the woman.

The conditions for marriage were not prohibited (ЗМ, IX, 88), but rather encouraged the marriage of minors, although Art. (Ill, 3 (1) established the age of marriageable majority for women and 16 years for men.

Intervarna marriages were not encouraged, but were allowed when the husband belonged to a higher varna than the wife (anuloma), but marriages of women from higher varnas with men of lower varnas (pratiloma) were strictly prohibited. This social evil (juvenile marriage) associated with religious attitudes has not been eliminated in India to this day.

In full accordance with the principles of Hinduism, divorce was prohibited by Dharmashastra, but Art. Was allowed if the spouses hated each other or due to cruel treatment of one another (III, 3 (15-17). Art., Contrary to the prohibitions of the Dharmashastras, allowed the remarriage of widows. Shastras, as a rule, excluded women from the list of heirs of family property, as well as outcasts, the sick, crippled, imbecile, etc., asserted the inequality of the inheritance rights of children born of wives of different varnas. , in addition to what his father gave him (ЗМ, IX, 155).

It should be noted that the rules for the inheritance of the property of a deceased sudra were less strict, allowing, for example, the inheritance of even a son born of a slave, if he was recognized by his father (3M, IX, 179). Persons deprived of inheritance could only count on help in food from the heirs. The special property of women (stridhana) after her death could be inherited by all children, including daughters.

Considering and comparing the marriage and family legislation of Russia with India, then of course huge distinctive features are immediately visible, namely:

Family relations are governed by Article 1 of the Family Code of the Russian Federation.

Chapter 3, section 2 of the Family Code of the Russian Federation regulates the conditions and procedure for marriage.

So, according to Art. 11 of the RF IC, it is said that marriage is concluded in the personal presence of the persons entering into marriage, after a month from the day they submitted an application to the civil registry authorities.

If there are valid reasons, the civil registry office at the place of state registration of marriage may authorize the conclusion of a marriage before the expiration of a month, and may also increase this period, but not more than by a month.

In the presence of special circumstances (pregnancy, childbirth, immediate threat to the life of one of the parties and other special circumstances), the marriage can be concluded on the day the application is submitted.

Clause 2 of Art. 11 IC RF - state registration of marriage is carried out in the manner established for state registration of acts of civil status.

Clause 3 of Art. 11 Investigative Committee of the Russian Federation - the refusal of the civil registration authority to register a marriage can be appealed in court by persons wishing to marry (one of them).

Family law in Russia is a branch of law that regulates property and personal non-property relations in the field of marriage and family relations. It is important to note that the question of the independence of family law as a branch is debatable in the science of civil law. A significant part of domestic civilians (Ioffe O.S., Tolstoy Yu.K., Sukhanov E.A.) classify family law as a sub-sector in the civil law system. In many countries, such an industry as family law does not exist at all, and the method of legal regulation of family law is the civil law method.

In the new socio-economic and political conditions of the development of Russian society, a radical renewal of the main branches of the law of our state, including civil law and family law, which is closely related to it, took place. So, on March 1, 1996, a new Family Code was put into effect, which, along with the Constitution and the Civil Code of the Russian Federation, the Convention on the Rights of the Child and other international acts, is the main source of family law.

Family law should be considered as a set of legal norms governing personal and derivative property relations arising between people from the fact of marriage, consanguinity, adoption, adoption of children into a family for upbringing.

Family life is an exceptionally special, intimate area of human relationships, which may not be fully regulated by the norms of law. And yet, the development of the family, its well-being are so important for the stability of society and the state that it strives to settle family legal relations. The new Russian family legislation has the main goal of strengthening the family and protecting the rights of all family members and each individual member. The Family Code of Russia guarantees the protection of the family rights of citizens, prohibits anyone's arbitrary interference in the affairs of the family, and prescribes the legal mechanisms for the fulfillment of family responsibilities by citizens.

The main principles of family law are the voluntariness of marriage relations, monogamy, equality of rights of spouses, the priority of family education of children, ensuring the unconditional protection of their interests and rights, as well as the interests and rights of disabled family members.

According to Art. 12 of the RF IC defines the conditions for marriage. For the conclusion of marriage, the mutual voluntary consent of the man and woman entering into marriage and their attainment of marriageable age are required. A marriage cannot be contracted in the presence of the circumstances specified in Article 14 of this Code.

Unlike sociology, which defines a family as a union of persons based on marriage and kinship or the adoption of children for upbringing, and is characterized by a community of interests, mutual concern for each other, jurisprudence treats the family exclusively as a legal connection between family members who are subjects of family legal relations. Family members include a husband and wife who are married in accordance with the procedure established by law, children and other relatives who, as a rule, have common ancestors, adoptive parents and adopted children, stepmothers, stepfathers, stepdaughters and stepsons, etc.

The objects of family legal relations are the actions of family members or things. For example, the divorce of spouses or deprivation of one of the spouses, as well as both, of parental rights, or the issue of the minor's ownership of a part of the privatized dwelling, etc.

The Constitution of Russia classifies family legislation as a joint jurisdiction of our state - the Russian Federation and its subjects, and the norms of family law contained in the laws of the subjects of the Federation must comply with and not contradict the Family Code of the Russian Federation. Article 2 of the RF IC defines the relations regulated by family law - these are the conditions and procedure for marriage, termination of marriage and its invalidation, regulates personal non-property and property relations between family members, between other relatives and other persons, and also determines the forms and procedure placing children without parental care in a family.

The grounds for the emergence of family legal relations are actions and events, i.e. legal facts, which should be understood as specific life circumstances, with the presence of which the norms of family law associate the onset of the legal consequences provided for in them. Actions can be lawful and illegal, for example, assigning a child to school in accordance with the law is a lawful act, and the refusal of adult children to support disabled parents is illegal. An example of a legal fact-event can be called the low security and material need of elderly parents, or the fact of adoption, etc.

The Family Code of the Russian Federation provides all citizens with the freedom to dispose of their family rights, but abuse of their rights (violation of the rights, freedoms and legitimate interests of other family members, as well as other citizens) is unacceptable and is punishable by law. The protection of the family rights of citizens is carried out by the court, and in the cases provided for by the RF IC, by state bodies or municipal bodies exercising powers of guardianship and trusteeship.

One of the cornerstones in family law is the concept of marriage, i.e. voluntary, equal union of a man and a woman. This union must be concluded with the observance of certain rules, since it gives rise to legal consequences. The rights and obligations of spouses arise from the date of state registration of marriage in the civil registry offices of the Civil Registry Office, where births, change of surname - first name - patronymic, death of a person are also registered.

The law prescribes the legal procedure and conditions for marriage: at the time of marriage, the presence of both persons entering into marriage must be present, the bride and groom must express mutual voluntary consent to enter into a family union, and, very importantly, they must reach the marriageable age, which is set at 18 years. If there are valid reasons, local governments may allow persons who have reached the age of 16 to marry at their request. Lowering the age of marriage as an exception, taking into account special circumstances below 16 years old, is included in the legislative competence of the constituent entities of the Russian Federation. The marriage is registered, as a rule, a month after the application by the groom and the bride, this period can be extended by the registry office for another month, or reduced to one day, since in the presence of special circumstances (pregnancy, childbirth, etc.), the marriage can be concluded on the day of application.

Article 10 of the RF IC states that marriage is concluded in the civil registry offices. The rights and obligations of spouses arise from the date of state registration of marriage in the civil registry offices.

A marriage is recognized as valid only if there is civil legal capacity of the persons entering into the marriage. This is why a mentally ill person who has been recognized as such by a court is not allowed to marry. In addition, the law allows people to undergo a voluntary medical examination free of charge. In accordance with clause 3 of article 15 of the RF IC, the basis for one of the spouses to go to court to declare the marriage invalid is only the fact that the other spouse concealed the fact that the latter had HIV infection (AIDS) or a sexually transmitted disease. In addition, marriages between direct relatives - brothers and sisters, mother and son, father and daughter, as well as between adoptive parents and adopted children are not allowed by law. In Russia, polygamy is prohibited and marriage is not allowed if the groom (bride) is already married. Concealment of this fact is also the basis for invalidating the marriage.

However, invalidating a marriage does not affect the rights of children born in wedlock.

The family, the kind and cordial relations between its members, naturally create the best conditions for the life of citizens. But law and law cannot prescribe a person to love another person or to be forever with him in family and marriage relations. And although the preservation of the family is important not only for its members, but also for society as a whole, the legislator does not prevent the dissolution of the marriage if the breakdown of the family is obvious.

Divorce terminates the legal relationship between the spouses for the future after the dissolution of the marriage time: if the spouses have come to a mutual decision about the impossibility of continuing their family life, then in the absence of both minor children, the divorce is carried out in the registry office, regardless of whether they have property disputes, if they have children - then the issue is decided in court. In this case, the court, after making sure of the voluntary consent of the parties, dissolves the marriage without clarifying the reasons. The court has the right to try to reconcile the spouses, but only if one of the spouses does not agree to a divorce. If the conciliation procedure has not yielded positive results within 3 months, the court dissolves the marriage. In accordance with the new Family Code, former spouses are not entitled to remarry until they receive a certificate of dissolution of the previous marriage from the registry office.

A man and a woman who have entered into a marriage union have both personal non-property and property rights and obligations. Marriage does not carry any restrictions on the rights of each of the spouses, regardless of the will of the other, to independently make decisions on personal issues: to choose a profession, occupation, place of residence or stay. When entering into marriage, spouses can choose the premarital surname of the husband (wife) as a common surname, or add another spouse to their surname, if their premarital surnames were not double.

According to Russian family law, there is no legal concept of “head of the family”; all issues of improvement and family life, first of all, the upbringing of children, should be resolved by spouses jointly on the basis of consent and equality.

The RF IC introduces, in accordance with the new Civil Code, significant changes in the property legal relationship of spouses. These relationships consist of the ownership, use and disposal of property belonging to family members. In all property relations, only individual family members have rights and obligations. Moreover, children do not have ownership of property owned by their parents. The law distinguishes between premarital property that belonged to a husband (wife) prior to marriage and property acquired during marriage.

The RF IC distinguishes between legal and contractual regimes of spouses' property. The property regime of spouses is valid according to the law, unless otherwise established by the marriage contract, namely: the spouses have equal rights to common, joint property, i.e. on the property that they acquired together (dishes, furniture, household appliances, car, housing, etc.). During the division, this property is divided into equal shares, even if the wife, for example, did not have an independent earnings, because she ran a household and raised children. Here are things for the personal use of each family member are his property, as well as gifts, even if they are made by the other spouse, as well as property received by inheritance. Among the objects of common property, the Investigative Committee of the Russian Federation names, in addition to the income of spouses from labor, entrepreneurial and intellectual activities, also securities, rights to shares in capital, contributions, both made to commercial organizations or credit institutions, and pensions received by spouses, benefits and other cash payments that do not have a special purpose.

In accordance with Art. 253 of the Civil Code of the Russian Federation provides that the disposal of property in joint ownership occurs with the consent of the spouses, i.e. it is understood that the deal on the disposal of the common property made by the husband (wife) is made with the consent of the other spouse. The transaction can be declared invalid by the court only if the court finds out the bad faith of the spouse who made the transaction.

The general provisions of the RF IC relating to joint property of spouses can be changed by spouses by concluding a marriage contract, which can be concluded both during the period of marriage and before its registration. The contract is subject to notarization. A marriage contract can change the legal regime of joint property, spouses have the right to determine their rights and obligations for mutual maintenance, the procedure for their family expenses, but a marriage contract cannot limit the legal capacity and capacity of spouses, violate the principles of equality of men and women in marriage and contain such conditions, which would be contrary to the general principles of family law. The marriage contract is terminated from the moment of termination of the marriage, it can be changed or terminated by mutual consent of the spouses at any time. Moreover, like any civil contract, it can be invalidated on the grounds provided for by the Civil Code of the Russian Federation.

Bibliography

Marriage and family law in India: modern and traditional aspects / Krasheninnikova N.A. - M., 2000.
Batyr K.I. Polikarpova E.V. Reader on the general history of state and law. - M. Lawyer. 1996.
Bongard-Levin G.M., Grantovsky E.A. From Scythia to India. Ancient Arians: Myths and History. - M. 1983.
Bongard-Levin G.M., Antonova K.A. Kotovsky G.G. History of India. - M., 2003.
Galanza P.N. History of the state and law of foreign countries. - M., 1999.
Zhidkov. O.A., Krasheninnikova N.A. History of the state and law of foreign countries. Part 2. - M. 2001.
Krasheninnikova N.A. History of the state and law of foreign countries. Tutorial. - M., 1999.
Family Code of the Russian Federation of December 29, 1995 No. 223-FZ (with subsequent amendments and additions) The original text of the document was published in the Rossiyskaya Gazeta editions of January 27, 1996. No. 17, "Collected Legislation of the Russian Federation" dated January 1, 1996, No. 1, Art. 16.
Sizikov M.I. History of State and Law. Chronology. - SPb., 2000.
Chernilovsky Z.M. Reader on the General History of State and Law: Textbook / Ed. ZM Chernilovsky. - M: Firm Gardarika, 2003.
Khroponyuk V.N. World history of state and law: textbook for higher educational institutions. - M., 1999.

Features of the legal regulation of marriage and family relations in the law of Ancient India

ancient eastern law of manu marriage

India was also characterized by the humiliated, subordinate position of women. Large patriarchal clans have survived here, in which the head of the family possessed enormous, almost unlimited power. In the sphere of family relations, the influence of socio-cultural traditions and the norms of customary law was most clearly manifested. This is evidenced, for example, by the indication of eight contradictory forms of marriage that were widespread in India and which the shastras could not but take into account.

The main purpose of a woman was considered to be the birth and upbringing of children, especially sons, on whom the obligation to perform memorial rites for deceased ancestors fell.

Offspring, like livestock, was recognized as the main type of wealth. By virtue of this, the mother's husband was considered the legal father of the child, regardless of who he was in fact. In this case, a woman was equated with domestic animals, slaves, whose offspring belonged to the owner (ЗМ, IX, 52 - 55).

It was also allowed, although it was considered a sin, the sale of a wife and children (ЗМ, XI, 69). The sale of sons did not, as a rule, entail turning them into slaves. Sons donated and sold in extreme circumstances (apparently to childless families) received all the rights of direct relatives in new families. The wife was considered not "only the property of the husband, she was, as it were, a part of him. It is not by chance that even the sold wife was not freed from her husband (ЗМ, IX, 46), but the right to her, in the minds of the ancient Indian, was retained even for the deceased husband. and at the heart of the prohibition of remarriage of widows (ЗМ, IX, §4) and the custom of self-immolation of widows at the burial of their husbands.

Thus, the family law of Ancient India and Ancient China was characterized by the degraded position of women in the family. Her legal status depended on her husband. The main purpose of the family was in the reproduction of sons, first of all. Although there were some peculiarities in the legal regulation of family and marriage relations, for example, in the conclusion of marriage.

Types of marriage according to the laws of Manu and divorce

Among the Hindus, according to the laws of Manu, marriage is recognized, in view of the ancestor cult established by them, as a sacred duty, and the main form of marriage is polygamy, although with a distinction between the main and secondary wives, of which the first must always be from the same caste as the husband. The number of wives is determined by law for each caste; so, a brahmin (priest) has the right to 4 wives, a kshatriya (warrior) - to 3, a vaisy (merchant or farmer) - to 2, and a sudra (artisan) - only to 1. In view of this limitation of the number of wives in the lower estates to the laws of Manu are credited by some with the honor of the original establishment of monogamy. The age of majority for men is 14 years old, for women - 7 years old.

The main conditions for marriage are as follows: - It is prohibited to marry among themselves relatives up to the sixth degree inclusive;

Younger brothers and sisters cannot get married earlier than older ones

A man who wishes to marry a woman of a lower caste must first marry a woman of a higher caste.

According to the method of conclusion, there are 8 types of marriage:

1) "the marriage of Brahma";

2) "marriage of the gods";

3) "marriage of saints"

4) “marriage of angels”, concluded by the solemn transfer of the bride by the father to her groom, who makes the established sacrifices; handing over his daughter to his fiancé, the father pronounces the established formula: “Perform collectively prescribed duties”;

5) "marriage of evil spirits", which consists in the fact that the groom, without the knowledge of his parents, receives the bride's hand;

6) “marriage of heavenly song-singers”, when young people unite among themselves according to mutual attraction and disposition;

7) “marriage of giants”, when a girl is kidnapped and taken away from her parental home by the groom against her will;

8) "marriage of vampires", when someone marries a girl with whom he had a criminal relationship.

The first 4 types of marriage are recognized as "blessed", from them children are born scientists, famous and happy; the other 4 are considered “unblessed”, and the children born in them are hard-hearted and vicious; however, these marriages are legally tolerated. At the same time, only the first six types of marriage are permissible for a brahmin; the ksatriya — all eight, and the vaisya and sudra — all except the seventh. Marriage according to the laws of Manu ends by divorce and death.

Divorce is allowed only if one of the following reasons exists: gross vices of one of the spouses, drunkenness, quarrelsomeness, wastefulness, an incurable disease, infertility after 8 years of marriage and an irresistible disgust for each other. Divorce according to ancient Indian law was not allowed, but the husband could leave his wife if there were no children in the family. True, an abandoned or sold wife was not released from her husband only if he was "a person harmful to the state." After the death of his wife, the husband could remarry, the wife has no right to remarry, unless she proves that she did not have physical contact with her husband. In the event of the death of her husband, the widow is not entitled to enter into a second marriage, except in the case when the death befell the husband before he had time to have physical contact with his wife; under such conditions, the obligation to marry the widow falls on the brother of her deceased husband, and the eldest son born in a similar B. is revered as the son of the latter.

In general, the position of a widow among the Hindus is very unenviable: she must certainly complain about her husband, even if she did not love him; if she remains childless, then she is subject to universal contempt, and in some localities the faithful widow follows her husband to the pyre (the so-called sutti, that is, the burning of a “good wife”).

Ancient India was characterized by a large patriarchal family. The head of the family is the husband. The woman was completely dependent on her husband and sons. The marriage was a property transaction, as a result of which the husband bought his wife and she became his property.

Marital-family and hereditary relations - "the eternal dharmas of husband and wife" - a number of chapters are devoted in the shastras, in the Laws of Manu mainly chapters III, IX, in Art. - Chapters 3-7 of Book III.

All the prescriptions "about the dharma of husband and wife" testify to the humiliated, subordinate position of women in ancient Indian society, in large, undivided patriarchal families-clans, in which the head of the family possessed enormous, almost unlimited power. In the sphere of family relations, the influence of socio-cultural traditions and the norms of customary law was most clearly manifested. This is evidenced by the indication of eight contradictory forms of marriage that were common in India and which the shastras could not ignore. The first four, encouraged by the brahmanas, were mainly limited to the father's marriage to his daughter "endowed with jewels" (with a certain dowry). Such, for example, is the form called "brahma" (Laws of Manu, III, 27), which, together with three subsequent ones ("daiva", "arsha", "prajapatya"), is opposed to the marriage "asura" - the purchase of the bride, recognized, but blamed along with marriages for love, without the consent of the father and mother ("pandharva"), with the abduction of the bride ("rakshasa") and violence against her ("paisacha"). As a result, all these forms were reduced to the purchase of a bride, a future worker in the family. It is no accident that in the sastras the first four forms of marriage were prescribed for the brahmanas and kshatriyas, the vaisya and the sudra were prescribed the marriage union with the ransom of the bride. A marriage with bride kidnapping, which apparently ends with the same ransom, which is in direct conflict with its other forms, is a clear relic of primitive society.

There were many such contradictions caused by the inclusion of archaic norms of customary law in the sastras. The proclamation, for example, of a woman's day and night dependence on men (father - in childhood, husband - in youth, son - in old age) (Laws of Manu, IX, 2,3), was side by side with the statement that the mother is a thousand times superior in respect to the father (Laws of Manu, II, 145). In the Laws of Manu, traces of polyandry can be found, when brothers had one wife, whose child was considered the son of all brothers (IX, 182).

The main purpose of a woman was considered to be the birth and upbringing of children, especially sons, on whom the obligation to perform memorial rites for deceased ancestors fell. Offspring, like livestock, was recognized as the main type of wealth. By virtue of this, the mother's husband was considered the legal father of the child, regardless of who he was in fact. In this case, a woman was equated with domestic animals, slaves, whose offspring belonged to the owner (Laws of Manu, IX, 52 - 55). It was also allowed, although it was considered a sin, the sale of a wife and children (Laws of Manu, XI, 69). The sale of sons did not, as a rule, entail turning them into slaves. Sons donated and sold in extreme circumstances (apparently to childless families) received all the rights of direct relatives in new families. The wife was considered not only the property of her husband, she was, as it were, a part of him. It is no coincidence that even a sold wife was not freed from her husband (Laws of Manu, IX, 46), and the right to her, in the mind of the ancient Indian, was retained for the deceased husband. Traditional attitudes that have survived through the ages underlie both the prohibition of remarriage of widows (Laws of Manu, IX, 64) and the custom of self-immolation of widows at the burial of their husbands ("sati").

In the event of the death of a childless husband, the wife, at the request of his relatives, had to give birth to a son from a brother-in-law or another close person (Laws of Manu, IX, 57-65), although this archaic norm of customary law was also only allowed, but was not encouraged and was called dharma in the Laws of Manu , "characteristic of animals" (IX, 66). Polygamy of men was also discouraged. But the husband could bring another wife into the house, if the first was not distinguished by virtue, was committed to drunkenness, was spiteful or wasteful (Laws of Manu, IX, 80).

The duty of a wife is obedience and respect for her husband. "If a wife does not give birth to children, another wife may be taken in the eighth year, if she gives birth to children dead - in the tenth, if she gives birth only to girls - in the eleventh, but if she speaks rudely - immediately" - is written in the Laws of Manu (IX, 81). A fine for an obscene woman could be replaced by flogging in the marketplace. This punishment was aggravated by the fact that the chandal (untouchable) had to flog the woman (Art., III, 3, (27 - 28).

The conditions for marriage were not prohibited (ЗМ, IX, 88), but rather encouraged the marriage of minors, although Art. (III, 3 (1) established the age of marriageable majority for women as 12 years and 16 years for men.

In full accordance with the principles of Hinduism, divorce was prohibited by the Dharmashastras, but Art. Was allowed if the spouses hated each other or because of cruel treatment of one another (III, 3 (15-17). Art., Contrary to the prohibitions of the Dharmashastras, allowed the remarriage of widows. Shastras, as a rule, excluded women from the list of heirs of family property, as well as outcasts, the sick, crippled, imbecile, etc., asserted the inequality of the inheritance rights of children born of wives of different varnas. , in addition to what his father gave him (Laws of Manu, IX, 155).

It should be noted that the rules for the inheritance of the property of a deceased sudra were less strict, they allowed, for example, to inherit even a son born of a slave if he was recognized by his father (Laws of Manu, IX, 179) Laws of Manu. Source Internet resource. Access mode: http://www.philosophy.ru... Persons deprived of inheritance could only count on help in food from the heirs.

Marriage and family law in antiquity

2.2 Marriage and family relations of ancient India

All the prescriptions "about the dharma of husband and wife" testify to the humiliated, subordinate position of women in ancient Indian society, in large, undivided patriarchal families-clans, in which the head of the family possessed enormous, almost unlimited power. In the sphere of family relations, the influence of socio-cultural traditions and the norms of customary law was most clearly manifested. This is evidenced by the indication of eight contradictory forms of marriage that were common in India and which the shastras could not ignore. The first four, encouraged by the brahmanas, were mainly limited to the father's marriage to his daughter "endowed with jewels" (with a certain dowry). Such, for example, is the form called "brahma" (Laws of Manu, III, 27), which, together with three subsequent ones ("daiva", "arsha", "prajapatya"), is opposed to the marriage "asura" - the purchase of the bride, recognized, but blamed along with marriages for love, without the consent of the father and mother ("pandharva"), with the abduction of the bride ("rakshasa") and violence against her ("paisacha"). As a result, all these forms were reduced to the purchase of a bride, a future worker in the family. It is no accident that in the sastras the first four forms of marriage were prescribed for the brahmanas and kshatriyas, the vaisya and the sudra were prescribed the marriage union with the ransom of the bride. A marriage with bride kidnapping, which apparently ends with the same ransom, which is in direct conflict with its other forms, is a clear relic of primitive society.

The main purpose of a woman was considered to be the birth and upbringing of children, especially sons, on whom the obligation to perform memorial rites for deceased ancestors fell. Offspring, like livestock, was recognized as the main type of wealth. By virtue of this, the mother's husband was considered the legal father of the child, regardless of who he was in fact. In this case, a woman was equated with domestic animals, slaves, whose offspring belonged to the owner (Laws of Manu, IX, 52 - 55). It was also allowed, although it was considered a sin, the sale of a wife and children (Laws of Manu, XI, 69). The sale of sons did not, as a rule, entail turning them into slaves. Sons donated and sold in extreme circumstances (apparently to childless families) received all the rights of direct relatives in new families. The wife was considered not only the property of her husband, she was, as it were, a part of him. It is no coincidence that even a sold wife was not freed from her husband (Laws of Manu, IX, 46), and the right to her, in the mind of the ancient Indian, was retained for the deceased husband. Traditional attitudes that have survived through the ages underlie both the prohibition of remarriage of widows (Laws of Manu, IX, 64) and the custom of self-immolation of widows at the burial of their husbands ("sati").

Marriage and family law in antiquity

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Marriage and family law under the laws of Manu

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Marriage and family relations in private international law

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Law "On the Law Applicable to Civil Relations with a Foreign Element" (2010), its features and application

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Manu's laws

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Manu's laws

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Property marriage and family relations

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The institution of marriage in family law

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Primitive state formations took shape in Ancient India in the 1st millennium BC. on the basis of individual tribes or an alliance of tribes in the form of so-called tribal states ...

Formation of the State and Law of Ancient India

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Features of historical doctrine of law

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The Status of Women in Roman Law

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The most important sources of ancient Indian law

The specificity of ancient Indian law is reflected, first of all, in its sources, among which are Dharmashastras (collections of religious, legal and moral precepts) and Arthashastras (treatises on politics and law). There was also the concept of "nyaya", similar to the European "law", which denoted the generally accepted sources of behavior. The concept of "law" as such was absent in ancient India. Dharmashastras, originally compiled by brahmanas for their disciples, are later recognized as sources of law. The oldest drahmasastras - Gautama, Baudhayama, Apastamba, Vasishkhta - were called dharmasutras (sutra - thread).

Dharmashastra Manu (laws of Manu) - the most famous of the dharmashastras (II century BC - II century AD). It arose on the basis of the oldest dharmashastras. Tradition attributes the drafting of the laws to Manu, the mythical progenitor of all people - Manu.

Another historical and legal monument of Ancient India is Arthashastra Kautilya (1st century BC - 1st century AD). The authorship of Arthashastra, which has survived to this day, is attributed to Kautilya, an adviser to King Chandragupta from the Maurya dynasty (IV-II centuries BC).

Marital - family and hereditary relations, "the eternal dharma of husband and wife", a large number of provisions are devoted in the shastras: in the Laws of Manu - mainly in Ch. III and IX, in the Arthashastra of Kautilya - in ch. 3 - 7 books III. This can be explained primarily by the fact that the varna-caste traditional structure of Indian society in antiquity (and to a large extent at the present time) was based on marriage, caste endogamous, clan exogamous restrictions and the requirements of hypergamous marriages, in which the husband, and not the wife, should to have a higher ritual status, because children inherited the ritual status of their father, which influenced not only their social status, but also their position among other castes and a podcast of a particular locality, social group to which they belonged.

A family

The Indian family was and still remains a large family, that is, brothers, uncles, cousins and nephews are closely related to each other. They all live together under the same roof or in neighboring dwellings and often jointly own the real estate of the clan. The Indian family was patriarchal and patrilineal. The father was the head of the house and was in charge of the common property, the leading role was transferred through the male line.

The ancient Indian family included parents, children, grandchildren, uncles and their offspring, as well as various male side relatives. Sometimes adopted children were also included; depending on their income, the family had a certain number of servants, domestic slaves and clients. The brahmana family could also host several disciples who were under the guidance of the head of the house for a long time and were considered family members. Such a family constituted a very large group, especially since in the conditions of a polygamous society in India, women get married early.

It was the family, not the individual, that was the unit of the social system; thus, when calculating the population in a particular area, its size was determined most often by the number of families, and not residents. Family ties were so strong that family relations within the family often lost their clarity; for example, a son could refer to any wife of his father as a mother, and the difference between a sibling and a cousin on the father's side was not always clearly understood: until now, both degrees of kinship are denoted by the same word. Shraddha, the ritual of commemorating the ancestors, contributed to the unification of the family into a single whole. During the ceremony, the ancestors were offered special rice dumplings - pindas. During sraddha, the sons, grandsons and great-grandsons of the deceased gathered, and it was believed that three generations of the deceased were involved in ritual offerings.

The large family system is already becoming onerous for the younger generation, but it once gave its members a sense of social security. In case of trouble, one could count on the help of relatives.

The majestic and awe-inspiring figure of the father of the family was not necessarily associated with the notion of tyranny and despot; his power, like that of the king, somewhat limited the prescriptions of the "sacred law" and custom. In some of the most ancient legislative texts, the father was allowed to give, sell or expel his son (ZM: XI, 69) and the legends cited confirm that all this could really take place, but other sources explicitly prohibit such actions. The father's right to the child's life is not directly recognized anywhere, and in Arthashastra, the murder of his son is considered one of the most heinous crimes and even parricide is allowed for self-defense.

Due to unimpeded natural development, a large family could grow to such an extent that it would become unmanageable. Therefore, the "sacred law" provides for the conditions for its division. Lawyers encouraged the separation of large families, as this created the preconditions for an increase in the number of domestic rituals, the gods received more offerings and more generously endowed the country with their blessings.

Childhood

The ceremony marking the birth (jatakarma) was carried out before the cutting of the umbilical cord and consisted in the fact that sacred incantations (mantras) were whispered in the newborn's ear, a mixture of honey and ghee was put in his mouth and he was named with the name that the parents kept secret until the initiation ceremony ...

The first solid food feeding (annaprasana) was considered important. At the sixth month, the child was given meat, fish or rice mixed with cottage cheese, honey and ghee, accompanied by the reading of Vedic hymns and the libation of ghee on the fire. In the third year of life, the boys, while observing various ritual actions, shaved their heads in a special manner, leaving a small tuft of hair on the crown, which a pious brahmana was supposed to keep throughout his life. A special ceremony marked the moment when the child began to learn to read and write.

The very abundance of rituals indicates how important the child was in the life of the parents. In the most ancient hymns of the Rig Veda, the birth of a son is referred to as the greatest grace. It was considered extremely important to have at least one son: having performed the rituals associated with the father's funeral, he thereby ensured his unhindered transition to another world. Thus, religion in every possible way encouraged the appearance of offspring. The deep sense of ancestral ties that existed in India increased the desire to have sons, without whom the continuation of the family would cease.

Girls, on the contrary, did not help their parents to pass to another world and did not contribute to the prolongation of the clan, since, according to the orthodox tradition, after marriage, they became members of the husband's family. Besides. They had to be provided with a dowry. The bride's father bore large expenses on his daughter's dowry, as a result of which the poor man remained in debt for the rest of his life. The lack of a dowry doomed the girl to celibacy, which more than once led to suicide. Difficulties in finding a prestigious groom and the sacred duty of the father to give his daughter in marriage served as a basis for the spread of underage marriages, the recognition of valid marriages with an insane, seriously ill (leper) man (AK. III. 2 (46-47). Therefore, the birth of girls was not very desirable But in wealthy Indian families, daughters were the subject of no less love and care than sons.

From ancient Indian literature one gets the impression that childhood was happy at times. Sayings like: "Do not spare the little rods for the children, they will rest you in old age" - are rare or do not occur at all. A small child was usually pampered, indulged in everything.

Marriage

The full period of apprenticeship was calculated for 12 years, although it was possible to stop studying, having mastered the knowledge of one Veda. Some of the most zealous students took a lifelong vow of chastity and continued their religious studies throughout their subsequent lives. However, as a rule, a young man who had reached the age of twenty would return home to join the daily life of his varna. After performing ritual ablution and rewarding the teacher in accordance with the means of his family, he henceforth became snataka (literally, “washed”) and could afford all earthly joys, eat any food common to members of his class, wear elegant clothes and jewelry that he put on during a special rite of returning home (samavartana). Usually, the Snataka was supposed to get married as soon as possible, since, unless he took a vow of celibacy, marriage and procreation were considered his direct responsibility.

A marriage, consecrated by religion, is arranged to this day by the parents of the bride and groom after lengthy negotiations and the study of omens, horoscopes and favorable physical signs. Those who marry usually belong to the same varna and caste, but if they come from the upper classes, then to different gotras and rights (CM: III, 13). The rules regarding the degrees of kinship excluding the possibility of marriage were very strict, especially in Northern India, where even in a caste that did not recognize the gotra, marriage between persons who had a common ancestor on the father's side in the seventh generation or on the mother's side in the fifth generation was prohibited.

It was believed that in an ideal marriage, the bride should be one third of the groom's age. Child marriage, practiced in wealthy families in a later era, is not mentioned at all in the sacred literature of ancient India, and it is highly doubtful that such marriages, even for girls, were common until the late Middle Ages. Ancient Indian medical sources claim that the best children are born to mothers over the age of 16, and, apparently acknowledging that child marriage has sometimes occurred, condemn this practice.

The ancient manuals list eight types of marriage, named after gods and various supernatural beings (ZM. III. 21-41; AK. III. 2 (2-9).

1. Brahma: a girl is issued with a dowry appropriate to the custom for a person of the same class, according to the ritual described above.

2. Daiva: a householder gives his daughter to a priest as a reward for performing a sacrifice.

3. Arsha: they do not give a dowry for the bride and, on the contrary, demand a symbolic ransom for her in the form of a cow or a bull.

4. Prajapatya: the father gives the daughter in marriage without a dowry and without a ransom.

5. Gandharva: is concluded with the consent of both parties, often without any rituals other than a verbal promise. Such a marriage was often secret.

6. Asura: marriage with bride price.

7. Rakshasa: marriage with abduction of the bride.

8. Paishacha: seduction of a drowsy, insane or drunk girl, which can hardly be called a marriage at all.

Of these eight forms, only the first four were generally accepted and considered acceptable to the brahmanas; consecrated by religion, they were regarded as indissoluble (CM: III, 39 "In families arising from four forms of marriage, starting with the first - brahma, etc., sons are born, shining with the knowledge of the Veda, approved by learned people.") pious people looked at the forms of marriage more or less disapprovingly (CM: III, 41). However, oddly enough, the Gandharva marriage, which often boiled down to only a temporary relationship, enjoyed recognition. There were doubts about its admissibility for the brahmanas, but it was definitely allowed for the members of the warna warna and the two lower classes. The Gandharva forms the basis of many romantic stories, he also generated one of the traditional images of later poetry: abhisarika, a maiden who secretly leaves her parents' house at night to meet with her beloved at a designated place.

All sacred writings do not approve of the asura in which the bride was simply bought from her father, although Arthashastra unconditionally recognizes this marriage. According to the available evidence, along with the generally accepted form of marriage, providing for a dowry, marriage with ransom already existed in the Vedic era, but it was considered not as a truly Aryan custom, but only as a concession to bad human inclinations.

Rakshasa marriage, that is, by means of abduction, was especially widely practiced among warriors. Paishach's marriage is unanimously condemned by all sources. The last three types of marriage are named after demons, among which the pisachi were considered the lowest and most disgusting. According to the books of laws, paisacha is permissible only for the lowest of the lowest, but by no means for the representatives of the higher varnas. Among the upper classes, marriages of the first type prevailed.

A special form of Gandharva marriage was svayamvara, that is, "one's own choice." The “books of laws” indicate that if the parents do not give the daughter in marriage immediately after she reaches puberty, she has the right to choose her husband, and, obviously, marriage of the bride's own choice did sometimes take place.

After completing an elaborate marriage ceremony, the householder could devote himself to three life goals, known from both religious and secular literature. These are: dharma, or the acquisition of religious virtues through strict adherence to the prescriptions of the "sacred law"; artha, or acquiring wealth by honest means; kama, that is, receiving pleasure. These three goals are listed in order of their importance, and in the event of a clash of opposing interests, the highest of them should be preferred. The last two goals hardly need clarification, as for the first, it demanded from the upper class the fulfillment of numerous religious duties, in particular rituals related to birth, marriage and burial, as well as the strict performance of the five great sacrifices (pancha-mahayajna ).

Divorce

Marriage in the dharmashastras was recognized as sacred and indissoluble for women. Secondary marriages of widows were prohibited (CM: IX.65,71). The wife was not released from her husband either in the event of her being sold or abandoned by her husband, or even in the event of his death (CM: IX. 46). A woman who escaped from her husband's family was fined 6 pan, except in cases of ill-treatment (AK: III.4 (1)).

Although the religious "books of laws" do not speak of divorce, the Arthashastra testifies that it was possible in earlier times, at least if the marriage was not sanctified by religious ritual. In this case, divorce was allowed with the mutual consent of the parties if they could not continue their life together (AK: III.3 (15.16)), and even without the consent of one party, if from this latter one could expect a serious danger to the life of the other spouse (AK: III.2 (48)). "Arthashastra" allows divorce even after religious consecration if the husband has left his wife, and the waiting period is set from one to 12 years, depending on the circumstances and belonging to varna (AK: III.3 (24-37)). However, these provisions are no longer reflected in later legislation and, apparently, were finally forgotten in the time of the Guptas, when divorce became completely impossible for members of the upper classes (AK: III.3 (19)). But for many of the lower castes, divorce is still permitted by custom, as seems to have been the case in antiquity.

Polygamy

In India, as elsewhere in the world, ordinary people usually adhered to monogamy, although polygamy was already known in the days of the Rig Veda. The kings and leaders of the tribes, as a rule, had more than one wife, as did many brahmanas and the most wealthy representatives of the lower classes.

Under normal circumstances, polygamy was not very much encouraged by early legislation. One of the drahmasutras even strongly forbids taking a second wife if the first has a tolerable character and she gives birth to sons (ЗМ: IX.80, 81; AK: III.2 (39)). Another, more recent source indicates that a polygamist cannot testify before a court. However, polygamous marriages are mentioned very often, and it can be assumed that they were quite common in all segments of society that could afford this luxury.

The husband was instructed to treat all wives equally, but it was difficult to enforce such a rule by law, and psychologically it usually turned out to be impossible. Tied forever to her husband's house, the first wife often suffered seeing a happy rival. Polygamous marriages did not necessarily turn out to be unhappy, and the first wife, if she had any sons, could always be comforted by the knowledge that she was the main wife and mistress of the house, who had the right to the first place next to her husband during all family celebrations and ceremonies. ...

While polygamy was fairly common, its opposite, polyandry, was also rare, although in almost the entire country it was unacceptable to most people of respected classes. “For a brother to take his brother’s wife is the greatest sin,” says one “book of laws.” “However, in other lands it also happens that the whole family marries one girl.” In the laws of Manu, traces of polyandry can be found, when brothers had one wife, whose child was considered the son of all brothers (IX, 182).

If the wife turned out to be childless, a man, wishing to have a son, could take another wife without prejudice to his reputation, and he could do this many times, since in this case a religious duty obliged him to polygamy. The husband was allowed to bring a second wife into the house if the first one had an evil disposition, was wasteful, seriously ill, committed to drunkenness (ZM: IX.80, 81; AK: III.2 (39)). A wife is allowed to cheat on her husband only in one case: if he has gone to distant lands and did not leave her a livelihood, “for even a virtuous wife, tormented by a lack of means of subsistence, can sin” (AK.III.4 (24-37)).

Situation of women

According to most authoritative sources, a woman is considered inferior to the law. In childhood, the parents are responsible for her, becoming an adult, she is in the care of her husband, left a widow - she falls under the supervision of her sons (CM: IX. 3 “The father protects her in childhood, her husband protects her in her youth, sons in old age; a woman is never fit) for independence ".)

Most of the schools of ancient Indian law allowed women to have little personal property (stridhana) in the form of jewelry and clothing. "Arthashastra" also allows her to own money in the amount of up to 2 thousand silver pans; any amount exceeding this limit was placed at the disposal of her husband, who in this case acted as her guardian (AK. III.2 (14-15)). The husband had certain rights to his wife's property: he could sell this property in case of special need, he could not allow his wife to spend it unwisely, but in practice it was still her personal property (ЗМ: IX.194-197), and after the death of his wife she passed not to her husband or sons, but to her daughters. Thus, the woman had property rights, although limited, but still greater than in many other ancient societies.

At all times, women could devote their lives to religion, although, of course, they did not have the right to fulfill priestly duties. Several Vedic hymns are attributed to female seers, and in the extensive Buddhist canon, nuns appear as the authors of a whole cycle of poems. In later texts, there are mentions of girls who from time to time attend guru talks and assimilate at least part of the Vedas. Yet, usually, the participation of women in religious life and the passion for asceticism were not encouraged. A woman's lot was considered to be the fulfillment of the duties of a wife and mother. Nevertheless, women from the upper strata of society were, as a rule, quite educated: in any case, fragments of poetic and dramatic works belonging to the pen of women have survived.

Women from the higher castes should have avoided contact with members of the opposite sex. Arthashastra prescribes rather severe punishments for wives who behave immodestly. A woman who, against the will of her husband, participates in entertainment and parties, should be fined 3 pans. If she leaves home without the permission of her spouse to visit another woman, then she is subject to a 6 pan fine; if she visits a man, the amount is doubled, and even doubled if the visit takes place at night (AK.III.3 (20-22)). If a man and a woman make love hints to each other or secretly conduct a love conversation, then she is subject to a fine of 24 pans, and her partner is doubled. If their conversation took place in a place with a dubious reputation, then the fine could be replaced with a whip: "Chandala must give her five lashes on each side with a whip in the village square." Thus, the husband had the right to almost unlimited control over his wife's behavior.

The first duty of a married woman was to serve her husband, bring and carry what he wanted, rub his legs if he was tired, get up in the morning earlier than he did, eat and go to bed after him. She must always be cheerful, skillful in household chores, having well-cleaned utensils and economical in spending ... The wife was forbidden to leave her husband and children. She is obliged to completely obey her husband (ZM. V. 147-164). Disobedience could lead to a fine or a canning punishment in the shopping area. The wife was supposed to follow her husband after his death (self-immolation). It was allowed, although it was considered sinful, the sale of a wife and children. The wife was not only the property of the husband, but a part of him. A husband could take another wife, force his wife to cohabit with another man. In the event of the death of a childless husband, the wife must, at the request of relatives, give birth to a child from a brother-in-law or from another close person (CM: IX.53)

But according to a number of norms, a woman was by no means powerless. The proclamation of the complete dependence of women on men was side by side with the assertion that the mother was a thousand times superior in respect to the father (ZM: II. 145). She is the keeper of the hearth, the embodiment of the goddess of the earth. Morality calls to honor the mother, she cannot be harmed, you cannot quarrel with her, you cannot leave her under the threat of a fine, leave her in a helpless state. And in all sources it is argued that a woman should be treated tenderly, well maintained, taken care of, adorned with jewelry and surrounded with luxury within the reasonable and accessible limits for her husband. You should not treat her too harshly, because the gods will not accept sacrifices from the one who beats his wife (CM: III. 56-60. “That family where women, family members grieve, quickly perishes, but the one where they are not grieve, always prosper. ”) Hence, the attitude of the ancient Indians towards women was very ambivalent. She was both a goddess and a slave, and a saint and a harlot.

The situation of widows

As a rule, a widow could not remarry (ЗМ: IX.65,71). In the Middle Ages, the upper classes adhered to this rule so strictly that it even extended to girls who were widowed in childhood, that is, never married. However, in earlier times, widow remarriage was reportedly fairly common. The Arthashastra of Kautilya allows this possibility (III.2 (21)). Some less authoritative writings allow remarriage if the husband has gone into hiding, died, became an ascetic, became impotent, or was expelled from the caste, but later commentators easily refute all these permissions and express full agreement with Manu: "Another husband is nowhere prescribed for virtuous women." ... Thus, remarriage, as well as many other healthy customs of antiquity, gradually ceased to be practiced by the upper classes.

In those families where the letter of the law was adhered to, the fate of the widow was difficult. She was obliged to lead an ascetic life in all respects, sleep on the ground, eat only once a day rough food, without using honey, meat, wine and salt, had no right to wear jewelry and bright clothes, and also use cosmetics. In the Middle Ages, a widow even had to shave her head. She was obliged to drag out such a life until the end of her days, in the hope of a second meeting with her husband in the "next birth." She spent her days in prayers and memorial rites and believed that the slightest deviation from this ascetic way of life could not only adversely affect her “next birth”, but also threaten the well-being of the soul of her late husband, who is forced to suffer in the next world because of his negligence. half here on earth.

In addition, the presence of the widow was a bad sign for everyone except her children. Wherever she went, she made everyone feel despondent. She was not allowed to attend the family festivities that played an important role in the life of a Hindu, because she could bring unhappiness to those present. She continued to be considered a member of her husband's family and had no right to return to her parents. Her husband's parents and relatives constantly watched her so that she would not break her vows and cause irreparable damage to the spirit of the deceased. Even the servants avoided her as an unfortunate omen, and the widow often eked out a truly miserable existence. Therefore, it is not surprising that women often went to the funeral pyre of their husbands ("sati").

The origin of this custom goes back to the most ancient cults. Many primitive peoples buried or burned together with the deceased his widows, horses and valuable property, so that he could use in the other world everything that he loved and needed on earth. All over India we find numerous stone monuments in honor of the faithful wives who followed the deceased husband into the fire. This is not to say that this custom is not condemned. He is rejected by the Tantric sects, which even claimed that a woman who follows her husband to the fire goes straight to hell. However, some medieval authors emphatically proclaim that by committing the act of self-immolation, the wife atones for her own sins and the sins of her husband, and both will receive 35 million years of heavenly bliss. The self-immolation of a widow was theoretically always considered voluntary, but judging by the later era, the pressure of public opinion and relatives turned it into a direct duty for women from the higher castes, especially for those who belonged to the warna of warriors.

The widow, as we have seen, only burdened her husband's family, since the slightest mistake in her behavior threatened the well-being of the soul of the deceased. In polygamous families, the widow's situation was even worse. Therefore, the widow herself, if she did not have small children, often preferred the painful death to the hateful hungry existence of the despised domestic slave by all, which gave her the hope of uniting with her husband.

Inheritance

The family's property was considered common, but it was managed by the head of the family. Ancient Indian law knew only inheritance by law. After the death of the parents, the property was either divided between the sons, or remained with the eldest son, who became the guardian of the younger brothers who remained in the house (AK.III.5 (2)). The eldest son did not receive a particular advantage when dividing the inheritance, except sometimes in the form of a small increase, up to 1/20 of an equal share (ЗМ: Article 156, Ch. 8). The division of property was carried out only among adults. Daughters were removed from inheritance, but the brothers were obliged to provide them with a dowry in the amount of ¼ of the total share.

The division of property was carried out not only after the death of the head of the family. It also occurred in those cases when the father retired from the world and became a hermit, and according to the legislation of Mitakshara (one of the leading schools of family law) - sometimes even against his will, by agreement between the sons, if the father was old, terminally ill, indulged in vices or could no longer manage the family property. Each son, like the biblical prodigal son, could claim his share and leave the family, although this was not approved.

The sastras generally excluded women from the list of heirs to family property. However, Article 217 of Chapter 9 of the Laws of Manu says: “A mother is supposed to receive the inheritance of a childless son; in the event of the death of the mother, let the father's mother receive the property. " The special property of women (stridhana) after her death could be inherited by all children, including daughters.

The sastras affirmed the inequality of the inheritance rights of children born of the wives of different varnas. So, the son of a Shudry woman and twice-born did not receive an inheritance, except what the father gave him (ZM: IX, 155). It should be noted that the rules for the inheritance of the property of a deceased sudra were less strict, allowing, for example, the inheritance of even a son born of a slave, if he was recognized by his father (CM: IX.179).

The common family property did not include the personal property of individual family members: at least since the Middle Ages, personal acquisitions, gifts and other similar things were considered as belonging to their owner. However, this situation appeared to be relatively late. Persons deprived of inheritance could only count on help in food from the heirs.

Gordon Alexander Garrievich

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