In a recent article published in this magazine titled “Pishacha Vivaha – Reparation Marriage”, Dr. Koenraad Elst makes a very detailed and a nuanced analysis of the practice of ‘reparation marriage’.

Reparation marriage refers to the practice of getting the victim of a sexual assault married to the perpetrator by the local community, if the victim agrees to such an arrangement. Dr. Elst shows that, contrary to the narrative by the so called secularists and missionaries, this practice was not limited to Hindu society, but was prevalent across the world, including the western and Arab society, with a country like Jordan banning it only last year.

In the Indian context, he notes how reparation marriage was introduced into Indian society by making Paishacha Vivaha as one of the eight forms of Hindu marriages. Though looked down upon and considered the lowest kind of marriage, it was still given a status of marriage. Dr. Elst argues that contrary to modern accusations of patriarchy and oppression, Paishacha marriage was probably introduced to provide social security to the victims and any children born out of such rape. Regarding how it helped the child, he notes:

“It was no pleasure to grow up as a bastard (reason why “bastard”, “son-of-a-bitch”, “harâmzâda” and other synonyms were the ultimate swearwords), and this arrangement assured that they had a father.”

Calling reparation as the “least bad” of the possible outcomes for a rape victims, Dr. Elst observes:

“As she had become “impure” in the eyes of society, including her own family, she risked being expelled and finding herself alone and defenceless out on the street. The best chance she still had was to become the keep of some rich man, treated as an inconsequential and invisible back street girl but at least cared for, at least as long as she was sexually desirable. More likely, her only possible livelihood would be prostitution, and her child, even if a boy, would soon fall prey to sexual predators too and probably never reach adulthood. It might also affect her sisters’ and brothers’ chances on the marriage market as they now belonged to a “dishonoured” family. It would turn the one-time misfortune of being raped into a lifelong disaster extending beyond her own person.”

More than just reparation

While reparation marriage could be one of the interpretations of the Paishacha marriage, there is much more to it than enunciated by Dr. Elst. He also misses several Dharmashastric injunctions, which when included in the analysis, will provide a different understanding of the societal treatment of the rape victim than the one presented in the article. I will take up three such undealt aspects of the issue.

Let us begin with a definition of Paishacha marriage. Manu Smriti (3.34) defines it thus:

“When someone secretly rapes a woman who is asleep, drunk, or mentally deranged, it is the eighth known as ‘Paishacha,’ the most evil of marriages.”

The point to note here is, it is not defining the reparation marriage done as a corrective course in the aftermath of the sexual assault as the Paishacha Vivaha. Instead, the very act of seduction and sexual intercourse that a man indulges in while the girl is sleeping, intoxicated or is otherwise not in a fully conscious condition, is defined as Paishacha marriage. That is, while reparation marriage can be considered a possible derivative of Paishacha marriage, the marriage itself is a reference to the act of sexual intercourse. That sexual intercourse is itself the most defining aspect of a marriage is also known from how Gandharva Vivaha or what can be called Love marriage is defined. Manu Smriti (3.32) says:

“When the girl and the groom have sex with each other voluntarily, that is the ‘Gändharva’ marriage based on sexual union and originating from love.”

Therefore, it is clear that it is the very act of sexual intercourse involved in a rape and not reparation marriage, which is defined as Paishacha and considered a very adharmic action.

Second, the Dharmashastras have prescribed a very severe punishment for rape and sexual assaults on women. Referring to Manu again, we can see that he mentions very harsh punishments at a number of places. In verse 8.352, for example, Manu writes:

“When men violate the wives of others, the king should disfigure their bodies with punishments that inspire terror and then execute them.”

Regarding sexual assault on unmarried women, Manu writes:

“A man who defiles a virgin against her will merits immediate execution (8.364).” In another verse, he further writes: “If a man arrogantly violates a virgin by force, two of his fingers should be cut off immediately, and he should also be fined (8.367).”

Therefore, sexual assault has been considered a very serious and unforgivable crime.

Third, the Hindu tradition has always upheld the need for the society to provide protection to women and hence, enable her to live with uncompromising dignity. Manu Smriti, for example, says:

“Her father guards her in her childhood, her husband guards her in her youth, and her sons guard her in her old age; a woman is never to be left un-protected (9.3)”.

Arthashastra mentions about the State providing support and livelihood opportunities to widows, maidens, unmarried spinsters, women with physical handicap, and women who had left their homes and are living independently. Thus, providing support and ensuring women can live their lives in an unhindered manner was the duty of the family, and in case, a woman did not have a family and/or had become separated from them, it was the duty of the state. Arthashastra notes that employing such women in textile industries was one of the ways how the State could accomplish it. 

Other possibilities

From the above discussion, it is clear that rape and sexual assault has been considered a very serious crime in the Dharmashastra tradition. While reparation marriage may have been opted by many victims of rape, especially in cases wherein the perpetrator may have shown repentance, this may not have been the prevalent or preferable form of practice. We do not have any data to establish what percentage of women chose to have the rapist punished and how many chose to marry them. But, considering the severity of the punishment, and the strictness of implementation in the pre-colonial period, it would be fair to say that women choosing to have her rapists punished was as prevalent, if not more, as those who opted for reparation marriages.

Also, it was noted before that Paishacha marriage, by definition, does not mean reparation marriage. Instead, it is a name given to sexual intercourse committed through stealth by drugging or intoxicating the woman or when she is asleep. Despite the act being recognized as heinous and Adharmic, it has been considered one among the eight form of marriages. This has been done in the anticipation of the children born out of such rape being branded as bastards. While the act of rape itself is considered heinous and the perpetrating man is punishable, for the women victim, who is innocent in the whole issue, the act is categorized as a marriage and hence, a child born out of it will be entitled to a life free from negative social labeling. Therefore, by categorizing rape as Paishacha vivaha, the Dharmashastra authors have ingeniously ensured that the children born out of it are considered legitimate.

Similarly, Dharmashastras suggest that victims of rape should not be victimized or considered impure, defiled, or be associated with any other negative connotations. Vashishta Dharmasutra (28.2-3) states that a woman who has suffered criminal force, or has fallen into the hands of thieves, should wait for her monthly menses, at the end of which she will become pure again. That is, the monthly menstrual periods, which are considered as a self-purification process, also frees victims of rape and sexual assault from feelings of disgust and dishonor and de-stigmatizes her in the eye of the society. It is no surprise then, Baudhayana Dharmasutra (2.2.4.4), says:

“Women (possess) an unrivalled means of purification; they never become (entirely) impure. For month by month their temporary uncleanness removes their sins.”

Therefore, by making menstruation a mechanism to become free of disgust, dishonor and stigma, the Dharmashastra authors not only ensured that women who were victims of rape were able to cope with their trauma and depression, but also that they were not abandoned by their families and would retain their social status.

More importantly, the fact that the family of the women, as well as the state, had a responsibility and a mechanism to support widows, spinsters, or women who were living independently shows that, even in the case of rape victims being abandoned by the family, she could have lived independently, without having to opt for either prostitution or becoming a rich man’s keep. Therefore, the social scenario into which the raped victims who refused to have reparation marriage found themselves in, as portrayed by Dr. Elst is only a case of the worst possible condition.

The more likely scenario, if we are to take the entirety of evidence available in Dharmashastras, would be that neither the rape victims nor any children born out of it were stigmatized in the society. While some women opted for reparation marriage, others opted to stay with their family, move on in life, and eventually emerge out of trauma. Even those who were abandoned by the family were protected and given means of livelihood by the State. Only a small minority may have been forced to take up prostitution and other desperate means of survival.

References / Footnotes

Elst, K. (2018). Pishacha Vivaha – Reparation Marriage. Pragyata.

Jaiswal, S. (2001). Female Images in the Arthasastra of Kautilya. Social Scientist.

Olivelle, P. (2010). Manu’s Code of Law: A Critical Edition and Translation of the Manava-Dharmasastra.

Sridhar, N (2016). Hindu View of Menstruation- II: Menstruation as Austerity and Self-purification. IndiaFacts.