History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t1.159

v4.c63.t1.159

¹²⁶⁵ In Bhimabai's case the Privy Council purport to follow the case of *Rakhmabai v. Radhabai* 5 Bom. H. C. R. (A. C. J.) p. 181. But in that case the husband was separate at the time of his death. The P. C. however point out that in *Yadao v. Namdeo* (48 I. A. 513 at p. 529) it was said that the decision in Rakhmabai's case was not based on the fact that the husband was separate at his death or on the fact that the widow when she made the adoption had the estate vested in her and it was held that that decision was equally applicable where the husband was joint. Apart from the fact that the decision of the P. C. is opposed to the general sentiment of Hindu society at present, with the greatest respect two criticisms have to be offered against the decision in Bhimabai's case. The passage of the Vyavahāramayūkha relied upon in Rakhmabai's case and in Bhimabai's case has not been correctly understood. The Mayūkha was combating the view of others that a widow cannot adopt at all. Therefore he tried to establish that a widow can adopt without her husband's authority. But the Mayūkha did not say expressly that she can adopt without any body's authority or that she can adopt even in a joint family without the consent of the coparceners or even against their wishes. On the contrary if we look at the whole context where he quotes Yāj. I. 85 and a verse of Kāt. (930) it would appear that he meant to convey that the consent of the father of the husband or of his kinsmen would be necessary. Further, no one drew the attention of the P. C. to another passage of the V. Mayūkha where it summarizes the rite of adoption and states 'Women whose husbands are alive are entitled to adopt with the permission of their husbands; failing the husband, a woman can adopt with the permission of the (husband's) father and the rest': 'स्त्रीणां सधवानां भर्तुरनुज्ञया भर्तृभावे पित्रादीनाम्' व्य. मयूख p. 120.