Kautilya's Maxims
14
A Wife Leaving the Home
(ArS 3/4:9-12)

[Previous Discussion]: The wife is liable to a fine if she leaves the house of her husband.

The Teachers: In cases of ill-treatment by a husband, there is no offense in a wife going to the house of her husband's kinsman, or a guarantor, or the village headman, or a guardian, or a female mendicant, or to that of her own kinsman, provided there are no [unmarried] males in it.

Kautilya: Or even if there are males in it. How can there be any impropriety, in the case of a chaste woman? This is not something that is difficult to understand.

The impatience of Kautilya with the pettifogging of his predecessors is manifest.

It is logically tempting to transfer Maxim #18 (on witnesses) to the head of this section. In that same logical spirit, the ArS author has begun his Book 3 with general guidelines for court procedure (including some of his own remarks on witnesses, not based on citations from Kautilya). But the later Laws of Manu introduce what might be called family law before the civil and criminal sections with which the rules of witnesses are largely associated, and the Kautilya maxims in ArS 3 (as distinct from their framing structure) seem to represent an early version of that tradition. We conclude that the order of Kautilya sayings as we have it in ArS represents a genuine tradition, and we have tried to leave that tradition intact.

It is notable that this comment addresses the case of separation under special conditions. There is no matching Kautilya prescription for regular divorce, or, for that matter, for regular marriage. It might be thought that these parts of his legal thinking are simply not preserved in ArS. But ArS 3/2-3 does provide for more standard cases of marriage and divorce; it simply does so without citing the opinion of Kautilya or any other authority. We think it likely that the ArS framing text is later than Kautilya, and reflects a more advanced stage of legal evolution. In Kautilya we seem to be witnessing an earlier phase: the emergence of law as a public provision limited to special cases not already dealt with by religious prescription or general custom. The maxims represent the residue, and not the totality, of standard procedure. Similarly, the Laws of Gortyn (Crete, 05c; see Willetts) treat of marriage and inheritance only in special situations that were presumably not covered by the common practice of the time (Sealey Justice 69, 79). The extension of law to normal cases, in fact, the incorporation of the whole range of common-practice rights and duties into formal law, would appear to be a later development, in which local traditions are wholly subsumed in central traditions..

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