History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t1.140

v4.c63.t1.140

The sūtras and smṛtis contain hardly anything about the dattaka except his name (among the 12 kinds of sons) or the definition, as in Baud. Dh. S. II. 2. 24, Manu IX. 168, Yāj. II. 130, Viṣṇu Dh. S 15. 18-19, Nār. (dāyabhāga 46). The Vas. Dh. S. is an exception. It not only gives a definition (in 17. 28-29), but is one of the earliest smṛti texts to dilate on the rules about adoption (in 15. 1-9). What it says may be set forth in one place. "Man produced from seed and blood owes his birth to his mother and father. (Hence) the mother and father have power to give, to sell or to abandon him. But one should not give or accept an only son, for, he is required to continue the line of his ancestors. A woman should neither give nor receive a son (in adoption) except with the permission of her husband. One about to take a son in adoption should, after having invited his kinsmen, having informed the ruler (of the intended adoption) and having performed in the middle part of his house a *homa* with the *vyāhṛtis*, take only him who is closely related and who is a kinsman not remote (in habitation and speech). If a doubt arises (as to the family of the person to be adopted) he (the person desiring to adopt) should treat one whose kinsmen are in a remote place as if he were a śūdra; for it is declared (in the Brāhmaṇa or Vedic works) 'by means of one (son, aurasa or adopted) he (the adopter) saves many.' If, after a son is taken (in adoption), an aurasa is born (to the adopter) the adopted son shall be the recipient of a fourth share "¹²⁵⁴. Manu IX. 141 refers to the adoption of a son who is not of the same gotra as the adopter and IX. 142 sets out the results of adoption. The other principal ancient texts quoted by the D. M. and V. Mayūkha are those of Atri, Śaunaka,¹²⁵⁵ Śākala and the Kālikāpurāṇa. The Mit. does not contain more than a few lines on the *dattaka*. It is only in such late works (belonging to the 17th century and later times) like the V. Mayūkha, the Dattakamīmāṁsā, the Saṁskāra-kaustubha, the Dattakacandrikā, that the dattaka receives an elaborate treatment. In modern times the D. M. and D. C. (which is branded as a forgery by some Bengal writers)¹²⁵⁶ have been regarded by the Privy Council as of the highest authority in matters of adoption. In *Collector of Madura v. Mootoo* 12 Moo. I. A. 397 at p. 437 the P. C. observe: 'Of the Dattakamīmāṁsā of Nanda Paṇḍita and the Dattaka. Candrikā of Devaṇṇa Bhaṭṭa, two treatises on the particular subject of adoption, Sir William Macnaghten says that they are respected all over India; but that when they differ the doctrine of the latter is adhered to in Bengal and by the southern Jurists, while the former is said to be the infallible guide in the provinces of Mithila and Benares'. But Jolly (T. L. L. p. 166) gives a far more correct estimate of the value of the D. M. when he says 'It is simply a misfortune that so much authority should have been attributed in the courts all over India to such a treatise as Nanda Paṇḍita's Mīmāṁsā which abounds more in fanciful distinctions than perhaps any other work on adoption and it is high time that the numerous other treatises on adoption should be thoroughly examined and given their due weight'. In *Bhagwan v. Bhagwan* 26 I. A. 153 at p. 161 the P. C. observe 'To call it (the Dattakamīmāṁsā) infallible is too strong an expression and the estimates of Sutherland and of West and Bühler seem nearer the true mark; but it is clear that both works must be accepted as bearing high authority for so long a time that they have become embedded in the general law'. Yet even these works have been set at naught and departed from by Courts in India on many points as will appear in the sequel.