History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t1.154

v4.c63.t1.154

After a man's death the only person that can adopt to him is his widow. It is as regards the power of the widow that the greatest divergence of views prevails. The basic text is that of Vas. 15. 5 (a woman should not give or take in adoption except with the assent of her husband). The resourcefulness and ingenuity of commentators, all deemed to be orthodox and all proficient in the Mīmāṁsā rules of interpretation, is illustrated nowhere better than in the interpretations of this text. Four interpretations are placed on this sūtra of Vasiṣṭha: (1) The D. M. and writers of Mithilā such as Vācaspati hold that a widow cannot adopt at all, because at the time of adoption it is impossible to have the consent of the husband (who is then dead) and because a woman cannot perform the *homa* with vedic mantras and cannot repeat the vedic passages about acceptance (which are required by Vasiṣṭha and Śaunaka); (2) In Bengal, Madras and Benares it is held that a widow may adopt under an authority from her husband given during his lifetime. The idea is that the permission (*anujñāna*) of the husband is not required to be given just at the time of the adoption and that it may be given long before the actual adoption. (3) In Madras a widow may also adopt without¹²⁶³ her husband's authority, provided she secures the consent of the father-in-law or (if the latter be dead) of all the co-parceners of the husband, if her husband died as a member of a joint family, and if the husband was separate at the time of his death, then the consent of the father-in-law or (if he were dead) of a substantial majority of her husband's nearest sapiṇḍas. In this view the word 'of the husband' (in Vasiṣṭha) is taken as only illustrative and not literally. (4) The Vyavahāramayūkha,¹²⁶⁴ the Nirṇayasindhu, the Saṁskārakaustubha, the Dharmasindhu, that are regarded as authoritative in Bombay and Western India, hold that the passage of Vasiṣṭha refers only to a wife whose husband is alive and that a widow may adopt without the husband's authority. According to this school the husband's authority to adopt is always to be presumed, unless he has prohibited his widow expressly or by necessary implication from adopting. The D. C. appeals to the general maxim 'another's (or the opponent's) view if not dissented from may be taken as having been approved'.