Hindu Law and Custom (Recht und Sitte) c7.727

c7.727

The more the other kinds of sonship fell into disuetude through the advance of morality and the increasing prevalence of child marriage, so that they came to be regarded merely as an odious privilege of the Ṛṣis of yore, out of vogue in the present day, the more was the theory of adoption improved and was at last developed into one of the most important institutions of Indian law. The datio in adoptionem (giving away in adoption) of a Dattaka is a ceremony in which the parents or the father alone or the mother with the permission of the father give away their son before witnesses to the adoptive parents so that he leaves his own family for ever to enter the family of his adoptive parents. The giving away of the son by his own parents is based on their right of disposition over the son by force of which they can give him away, sell him or turn him out of the house; in this connection the Smṛtis refer to the well-known legend of Śunaḥśepa in the Ait. Br. whom his father Ajīgarta sold to King Hariścandra under pinch of poverty and who was afterwards adopted by Viśvāmitra (Vas. 17, 31ff). According to this legend which was regarded as the Vedic precedent of an adoption², the expression āpadi in M. 9, 168 should be taken to mean the need or poverty of the original parents and not, as some commentators have explained it, the need of the adoptive parents owing to their lack a son. The only son of the original parents should in no way be given away because he is indispensable for the continuation of the family; on similar grounds sometimes the giving away of the eldest son is forbidden. The rule that the adoption must take place in early childhood before the sacred ceremonies, viz. shearing of hair of the adoptandus (*cūḍā*) and his initiation (*upanayana*), are performed or when he is not more than five years of age, is based in fact only on a text of the Kālikāpurāṇa the authenticity of which has been questioned by various commentators; yet however it corresponds to the nature of Dattaka-adoption in contradistinction to the adoption of a grown-up boy in the Kṛtrima form (arrogatio). The sacred ceremonies of the boy must take place in the family of the adoptive parents so that he may be fully assimilated to it in conformity with the principle that the adoptandus is the shadow of a real son (*adoptio imitatur naturam* = adoption imitates nature). The adoptive son therefore must be of the same status and caste as those of the adoptive father; the nearest blood relations should in particular be chosen for this purpose and according to the commentaries first of all the brother’s son and eventually a distant agnate relative should be selected, but never the son of the daughter or of the sister. Of the adoptive parents the mother alone has the right of adoption only if the father gives permission and a further precondition for it is that no son of theirs should be living at the time of the adoption.