History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t1.148

v4.c63.t1.148

*Persons who can give in adoption*—The primary right to give in adoption is that of the father, who can do so without consulting the mother.¹²⁵⁹ The mother cannot without the husband's permission give her son in adoption while the father is alive and capable of consenting. But the mother alone can (as said by Manu IX. 168, Yāj. II. 130) give her son in adoption if the father be dead or if he is incapable of giving consent or has entered the order of ascetics, provided he has not expressly or impliedly prohibited her to do so. If both parents are dead no one else, not even the paternal grand-father or the step-mother or a brother, can give a man in adoption. If A has a son B and is then given in adoption by his mother into another family, it was held in *Martand v. Narayan* that A still retained his power as father to give away B in adoption (I. L. R. 1939 Bom. 586 F. B.). This decision has been dissented from by the Nagpur High Court in *Sharadachandra v. Shantabai* (I. L. R. 1944 Nag. p. 544, F. B.). But the reasons given by the Nagpur High Court are not convincing and the judges seem to be influenced by the dictum of the P. C. that the adopted son is just like an aurasa son except in a few well defined cases. It cannot be supposed that the P. C. knew all the texts of the *nibandhas* dealing with adoption. Though the Bombay High Court held in *Putlabai v. Mahadu* 33 Bom. 107 that a mother did not by her remarriage forfeit her right to give in adoption her son by the first husband, that decision was subsequently overruled in *Fakirappa v. Savitreva* 23 Bom. L. R. 482 (F. B.) which decided that after remarriage a widow has no power to give in adoption her son by the first husband. The same High Court held in *Shamsing v. Shantabai* (25 Bom. 551) that a Hindu father, who, after the birth of a son, became a convert to the Moslem faith, did not by reason of his conversion lose his power of giving his son, who remained a Hindu, in adoption though the physical act of giving in adoption, being accompanied by religious ceremonies, may have to be delegated by him to a Hindu. This decision was based on the Caste Disabilities Removal Act of 1851 (for which see above p. 547, *n.* 1021). This decision is against the spirit of the ancient Hindu Law.