History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v1.c6.s90.39

v1.c6.s90.39

Several views expressed in the Dattakamīmāṁsā have been set at naught in the various provinces by the British Indian Courts. Nandapaṇḍita held that a widow could not adopt at all.¹⁰⁶⁷ Except in Mithilā this view has nowhere been entertained in India and the Courts have held that the Law of Benares, Bengal, Madras and Bombay is different. Nandapaṇḍita put forward the position that the brother's son must be preferred for adoption over any other *sagotra* or *sapiṇḍa*.¹⁰⁶⁸ This has, however, been treated in all provinces as no more than a mere recommendation and that failure to observe it entails no legal or religious consequences whatever. The expression 'putracchāyā' in 'putracchāyāvaham' occurring in the text of Śaunaka was explained by Nandapaṇḍita to mean 'similarity to a son born' and he said that the similarity consisted in the possibility of being begotten by means of *niyoga* and the like.¹⁰⁶⁹ Sutherland wrongly introduced the word 'marriage' after *niyoga* in his translation and some of the High Courts in India, following this wrong translation, evolved the rule that no one could be adopted whose mother the adopting father could not have legally married in her maiden state.¹⁰⁷⁰ But the Bombay High Court has laid down that the rule is restricted to the three specified cases of the daughter's son, the sister's son, and the mother's sister's son.¹⁰⁷¹ From the text (brāhmaṇāditraye nāsti bhāgineyaḥ sutaḥ kvacit), Nandapaṇḍita evolved the curious rule that a widow cannot adopt to her deceased husband her own brother's son. But the Privy Council has refused to follow this *dictum* on the ground that the gloss of Nandapaṇḍita is an extension not based on the authority of any smṛti and has upheld such an adoption.¹⁰⁷²