History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t1.150

v4.c63.t1.150

*What persons may adopt a son.*—Every male Hindu, who is of sound mind and has attained the age of discretion, though he may be a minor according to the Indian Majority Act (III of 1875), can take a son in adoption provided he has no son, grandson or great-grandson, natural or adopted, living at the time of adoption. The word 'aputreṇa' in the verse of Atri (quoted above in n. 1231) is explained by the D. M. as meaning¹²⁶⁰ one who had no son at all or whose son is dead and as including the grandson and great-grandson. It would appear from a Bombay decision that even if a Hindu has a son, grandson or great-grandson disqualified from inheriting on the grounds mentioned above he cannot adopt (vide *Bharmappa v. Ujjangauda* 46 Bom. 455). In the Dattasiddhāntamañjarī of Bālakṛṣṇa (folio 11b) it is stated that if the aurasa son of a person is congenitally blind, dumb or deaf he can take a boy in adoption. In *Krishnaji v. Raghavendra* I. L. R. (1942) Bom. 492 it has been held, relying upon 46 Bom. 455, that a widow cannot adopt a son during the lifetime of her natural son who was a congenital idiot. The fact that a man is a bachelor or a widower or that his wife does not consent or that she is pregnant at the time of adoption does not prevent him from taking a son in adoption. In fact Vasiṣṭha provides for the birth of a son after a son is adopted (15. 9). It was said¹²⁶¹ by Rudradhara and Vācaspati that as śūdras cannot perform *homa* with vedic *mantras* (required by Vas. quoted above on p. 663) śūdras cannot adopt a son. Others like Raghunandana, Nīlakaṇṭha, D. M. hold that a śūdra can adopt, as Śaunaka expressly allows him to do so and that the *homa* may be performed through a brāhmaṇa (as allowed by Parāśara VI. 63-64)¹²⁶². A wife cannot adopt during her husband's lifetime except with his express consent (as Vas. 15. 5 says).