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History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2: Who may be adopted

History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2

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Who may be adopted

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The person to be adopted must be a male according to the Vyavahāramayūkha¹²⁷⁰ which relies on the analogy of *upanayana* (that only a male undergoes, as stated in the ancient text '*aṣṭavarṣaṁ brāhmaṇam-upanayīta*). This has been followed by the Indian Courts.¹²⁷¹ But the D. M. (pp. 112-116), Saṁ. K. (p. 188) and Dharmasindhu¹²⁷² relying upon such instances as that of Śāntā, the daughter of king Daśaratha (who was adopted by king Lomapāda) and of Pṛthā, who was the daughter of Śūra and was adopted by Kuntibhoja, say that even a girl may be adopted. Pannalal in 'Kumaun local customs' states that a girl may be adopted as a daughter in Kumaun by custom. The person to be adopted must be of the same caste as the adopting father. Yāj. II. 133, providing that the twelve kinds of sons that offer the piṇḍa and take the wealth one after another in order, applies only to sons of the same caste. Śaunaka also requires sameness of caste. Manu IX. 168 employs the word 'sadṛśaṁ', which was interpreted by Medhātithi as meaning 'similar to the adopter in qualities and not in caste'. Medhātithi¹²⁷³ expressly states that a brāhmaṇa may adopt a kṣatriya boy. But Kullūka and the other commentators of Manu, the V. Mayūkha and other works hold that the boy must be of the same caste. The Saṁ. K. p. 150 and Dharmasindhu go a step further by saying that even a brāhmaṇa should adopt another of the same country. The Vāyupurāṇa (99. 137-139) narrates that Bharata, son of Duṣyanta, adopted Bharadvāja, son of Bṛhaspati and a brāhmaṇa, who then became a kṣatriya.¹²⁷⁴ The courts accept the view of Kullūka and the rest. It is likely that courts may allow a boy from a subcaste of each of the four principal varṇas to be adopted by a man belonging to another subcaste of the same varṇa.1274a Śaunaka and Vṛddha-Yāj. q. by D. C. provide that the *dattaka* may be of a different caste, but that such a son will not take the wealth.¹²⁷⁵ In spite of the words of Vas. 15. 3 and of Śaunaka (that one having an only son should not give him) the courts have held that even an only son may be given or taken in adoption and that the words of Vasiṣṭha are merely recommendatory. Vide *Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma* 26 I. A. p. 113 and *Vyas Chimanlal v. Vyas Ramchandra* 24 Bom. 367 (F. B.). In connection with the force of the words of Vas. 15. 3-4 stating why an only son should not be given or taken, Jaimini's rule contained in what is called the 'hetuvan-nigadādhikaraṇa'¹²⁷⁶ (Jai. I. 2. 26-30) came in for very exhaustive discussion in *Beni Prasad v. Hardai Bibi* 14 All. 67 (F. B.) and *Radha Mohun v. Hardai Bibi* 26 I. A. pp. 113, 146. There are several Vedic passages like this, 'he offers the grains into the fire with a winnowing basket, for food is prepared with the help of it' (Tai. Br. I. 6. 5). The question is whether such sentences put forward a reason for what is enjoined in the preceding portion or whether they are intended merely as *arthavādas* (i. e. for the praise of what is stated in the preceding part of the passage). Jaimini concludes that they are for the purpose of praise¹²⁷⁷ alone.

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¹²⁷⁰ दत्तकश्च पुमानेव भवति न कन्या। स ज्ञेयो दत्रिमः सुतः (मनु ९. १६८) —इति संज्ञासंज्ञिसम्बन्धबोधकवाक्यगतेन स इति सर्वनाम्ना मातापितृकर्तृक-प्रीतिजलशुणकापनि-मित्तकदानकर्मभूतसजातीयपुंस एव—अष्टवर्षं ब्राह्मणमुपनयीत तमध्यापयीत—इति तच्छब्देनाष्टवर्ष—ब्राह्मणपुंस्त्वोपनयनादिसंस्कृतस्येव परामर्शात्। व्य. मयूख pp. 108-109 For अष्टवर्षं ब्राह्मणमुपनयीत, vide आप. गृ. IV. 10. 2 and सुदर्शनाचार्य's gloss thereon. The धर्मसिन्धु says: एवं दत्तकन्याया अपि स्वीकार उक्तविधिना कार्यः। तत्र वरणगोत्रपक्षाया ग्रहणे विवाहे गोत्रद्वयवर्जनं प्राग्वत्। पुत्रपत्न्योरभावे दत्तकन्यैव पितृधनभागिनी। (III पूर्वार्ध p. 162).

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¹²⁷¹ Vide *Gangabai v. Anant* 13 Bom. 690, where the Vyavahāramayūkha is expressly referred to and followed in preference to D. M. and Saṁskārakaustubha. Vide also *In re Munshiram* 12 Lahore 658 at p. 661.

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¹²⁷² For the quotation from the सं. कौ. vide H. of Dh. vol. I. p. 449 *n.* 1119. The D. M. adds passages from the स्कन्दपुराण, लिङ्गपुराण, हरिवंश and आदिपर्व. Vide आदिपर्व 111. 2-3 (cr. ed. chap. 104) for the adoption of कुन्ती, and रामायण, बालकाण्ड, 9th chap. for that of शान्ता.

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¹²⁷³ सदृशं न जातितः किं तर्हि कुलानुरूपैर्गुणैः । क्षत्रियादिरपि ब्राह्मणस्य दत्तको युज्यते । मेधा. on मनु IX. 168. विप्रादीनां वर्णानां समानवर्ण एव । तत्रापि देशभेदप्रयुक्त-गुर्जर्त्वाऽन्ध्रत्वादिना समानजातीय एव । धर्मसिन्धु III पूर्वार्ध p. 158.

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¹²⁷⁴ तस्मादु द्विचो भरद्वाजो ब्राह्मण्यात्क्षत्रियोऽभवत् । द्विसंख्यायननामा स स्मृतो द्विपितुकस्तु वै ॥ वायु 99. 157. द्विसंख्यायन seems to be a corrupt form of द्वयामुष्यायण.

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1274a In *Raj Nandini v. Aswini Kumar* I. L. R. (1941) 1 Cal 457 the adoption of a Vaidya child by a Kāyastha was upheld in the Sylhet district, as both are now treated as śūdras.

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¹²⁷⁵ यदि स्यादन्यजातीयाे गृहीतोपि सुतः क्वचित् । अंशभाजं न तं कुर्याच्छौनकस्य मतं हि तत् ॥... व्यक्तमाह वृद्धयाज्ञवल्क्यः । सजातीयः सुतो ग्राह्यः पिण्डदाता स रिक्थभाक् । तद्भावे विजातीयो वंशमात्रकरः स्मृतः । ग्रासाच्छादनमात्रं तु लभते स तदृक्थिनः ॥ इति । दत्त. च. p. 7; दत्त. मी. quotes the verse यदि स्यात् & as शौनक's (p. 104) and also as वृद्धगौतम's(p. 52).

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¹²⁷⁶ हेतुर्वा स्यादर्थवत्त्वोपपत्तिभ्याम् । स्तुतिस्तु शब्दपूर्वत्वादचोदना च तस्य । जै. I. 2. 26-27; अथ ये हेतुवन्निगदाः शूर्पेण जुहोति तेन ह्यन्नं क्रियत इत्येवमादयस्तेषु सन्देहः । किं स्तुतिस्तेषां कार्यमुत हेतुरिति । किं प्राप्तम् । हेतुः स्यादन्नकरणं होमस्य । शबर; इह ये हेतुवन्निगद्यन्ते विशब्दादिभिर्न च परमार्थातवस्ते उदाहरणम् । तन्त्रवार्तिक.

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¹²⁷⁷ Nigada means 'a sentence or sacrificial formula' and 'hetuvat' means 'containing a word or words (like 'hi') which are generally used to indicate a reason' for a statement already made. In preparing food from grains, the *śūrpa* is required for winnowing them to free them from husk &c. as also are required the pan or pot for boiling the grains and a ladle for stirring the grains when they are being boiled. The Śruti passage provides that with the help of a *śūrpa* the homa is made of Karambhapātras (pots full of husked grains of *yava* slightly fried on the Dakṣiṇa fire, ground and mixed with curds) in the Varuṇapraghāsa, one of the *cāturmāsyas*. Vide H. of Dh. vol. II. pp. 1095-96 and 1098 for the *śūrpa* used as a *juhū* ladle. If the latter part of the passage contains a reason for the first part, then it would follow that the pot or ladle (both of which are useful in getting food ( *Continued from the last page* ) prepared) may equally be used instead of the śūrpa. But the object of the latter half is not to assign a reason, but rather to praise and recommend the śūrpa as the means of making the homa and so nothing but the śūrpa can be employed in making the offering. The Veda is the final authority in all matters pertaining to sacrifice; it does not stand in need of giving reasons for its prescriptions but it may eulogise an act to induce people to perform it. Therefore in the hetuvan-nigadādhikaraṇa Jaimini does not lay down (as thought by Mandlik and by the High Court in 14 All. 67, pp. 73, 84, 125) that when a text is supported by a clause containing words of reason, it should be regarded as merely recommendatory (and not obligatory), but what Jaimini lays down is that clauses containing words generally meaning 'reason' are to be construed as *arthavādas* (praises) of the obligatory rule contained in a previous clause. Mr. Mandlik says (p. 499 of his 'Hindu Law') 'It is a rule of the Pūrvamīmāṁsā that all texts supported by the assigning of a reason are to be deemed not as *vidhi* but simply as *arthavāda* (recommendatory). When a text is treated as an arthavāda it follows that it has no obligatory force whatever. Śabarasvāmin constructs an adhikaraṇa on this head which he calls 'hetuman-nigadādhikaraṇa' (quoted in 14 All. 67 at p. 73). This is entirely wrong as shown above and the adhikaraṇa is not called 'hetuman etc.' but 'hetuvan etc.'. Acc. to Jaimini's rule the words of Vas. 15. 3 'naikaṁ putram' contain a vidhi (an obligatory rule), while the following clause containing the word 'hi' (indicative of a reason) '*sa hi santānāya pūrveṣām*' is merely an arthavāda, which praises the vidhi by emphasizing the importance of a son. Sarkar in his 'Mīmāṁsā Rules' (pp. 175-176) correctly represents the meaning of Jaimini, though in somewhat obscure language. The decisions in 14 All. 67 and 26 I. A. 113 are correct so far as the Mit. and the Mayūkha are concerned, though the judgments in the former case are wrong in what is regarded to be the meaning of Jaimini's aphorisms constituting 'hetuvan-nigadādhikaraṇa'. The Privy Council in 26 I. A. 113 at p. 146 refer to the supposed rule of Jaimini that all precepts supported by the assignment of a reason are to be taken as recommendations only, but they express themselves guardedly and say that the rule is rather startling and they would not admit it to be true unless they made an intimate study of the smṛtis. The commentaries will make the Pūrvamīmāṁsā position clear. अस्मत्पक्षे पुनः शूर्पं स्तूयते । तेन ह्यन्नं क्रियत इति वृत्तान्तान्वाख्यानं न च वृत्तान्तज्ञापनाय किं तर्हि बरोचनार्थैव । तस्माद्धेतुवन्निगदस्यापि स्तुतिरेव कार्यमिति । शबर on जै. I. 2. 30. The शास्त्रदीपिका states 'न च वेदेनोच्यमाने शूर्पस्य होमसाधनत्वं हेतुमपेक्षते वेदस्यैव तत्र प्रमाणत्वात् । अर्थवादस्त्वपेक्षितः प्ररोचनार्थत्वेन । तस्मादर्थवादत्वम्।'

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The eldest son also should not be taken in adoption, since, as the Mit. (on Yāj. II. 130) puts it, it is the eldest son alone who is the foremost in serving the purposes of a son as regards his genetive father acc. to Manu IX. 106 which says 'a man becomes one having a son (a father) by the mere fact of the birth of his (first) son and becomes free from the debt owed to the *pitṛs*'. But in modern times this rule is taken to be only recommendatory and the adoption of the eldest son is held valid as also that of an only son¹²⁷⁸. The V. Mayūkha (p. 108) states: acc. to the Mit. the prohibition to give the eldest son affects only the giver but not the adopter and he criticizes the Mit. that Manu IX. 106 does not forbid the giving of the eldest son, but only provides that by the birth of the first son a man becomes free from debt (to pitṛs). So the V. Mayūkha goes a step further and holds that there is no prohibition at all either to give or take in adoption the eldest son, while the Mit., though it does not hold the adoption bad, seems to hold that the giver incurred blame. The Saṁ. K. p. 150 also does not allow the adoption of the eldest son. Two or more persons cannot adopt the same boy and if they do so the adoption by each is invalid¹²⁷⁹. The Dvyāmuṣyāyaṇa adoption, to be described later on, is an exception.

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¹²⁷⁸ Vide *Kashibai v. Tatia* 7 Bom. 221, *Tukaram v. Babaji* 1 Bom. L. R. 144 (for valid adoption of eldest son), where at p. 152 the following passage from the Mayūkha is referred to: ज्येष्ठेन जातमात्रेण पुत्रीभवति मानव इति ज्येष्ठस्यैव पुत्रकार्यकरणे मुख्यत्वात्स न देय इत्ययमपि निषेधो दातुरेव न प्रतिग्रहीतुस्तस्यापि सः। स्यादयं प्रतिषेधो दातुरेव यद्येतस्य ज्येष्ठदाननिषेधकता स्यात्। न तु सास्ति। मानाभावात्। पुत्रीभवतीत्यनेन पुत्रित्वमात्रोक्त्या ऋणापाकरणोक्तिमात्रपरत्वाच्च। अत एव 'पितॄणामनृणश्चैव स तस्मात्सर्वमर्हति'—इत्युत्तरार्धं सङ्गच्छते। व्य. मयूख p. 108. The same passage of the Mayūkha is referred to in *Vyas Chimanlal v. Vyas Ramchandra* 24 Bom. 367 (F. B.) at p. 375.

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¹²⁷⁹ अपुत्रेणैरेकत्वश्रवणाच्च न द्वाभ्यां त्रिभिर्वा एकः पुत्रः कर्तव्य इति गम्यते। दत्त. मी. p. 25.

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The texts contain rules about preference in selecting a boy for adoption, when several are eligible. The Mit.¹²⁸⁰ on Yāj. II. 132 declares that the verse of Manu IX. 182 stating that 'when out of several brothers who are sons of the same father one has a son all of them become through that son persons having a son' does not provide that he becomes really the son of all but it indicates that when a brother's son is available for adoption another boy should not be adopted. A similar explanation had been given by an ancient commentator Devasvāmin. The D. M., D. C. (pp. 5-6) and Saṁ. K. p. 150 quote passages of Śaunaka¹²⁸¹ and Śākala that a man should prefer a sapiṇḍa or a sagotra to one who is not a sapiṇḍa or of the same gotra. The D. M., D. C., the Saṁ. K. p. 150, the Dharmasindhu recommend the following order: the full brother's son, then a sagotra sapiṇḍa, then a sapiṇḍa though not of the same gotra (such as a boy from one's maternal uncle's line or a paternal aunt's descendant), then one not a sapiṇḍa though of the same gotra, then one who is neither a sapiṇḍa nor a sagotra. This order is purely recommendatory and an adoption in breach of it is quite valid. It has been recently held that an adoption is invalid if the boy adopted be congenitally and incurably deaf and dumb though not an idiot. Vide *Surendra v. Bholanath* I. L. R. (1944) 1 Cal. 139.

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¹²⁸⁰ यत्तु 'भ्रातृणामेकजातानामेकश्चेत्पुत्रवान्भवेत्। सर्वे ते तेन पुत्रेण पुत्रिणो मनुरब्रवीत्'—इति (मनु ९. १८२) तदपि भ्रातृपुत्रस्य पुत्रीकरणसम्भवेऽन्येषां पुत्रीकरणनिषेधार्थम्, न पुनः पुत्रत्वप्रतिपादनाय तत्सुता गोत्रजा बन्धुरित्यनेन विरोधात्। मिता. on या. II. 132. The same verse is वसिष्ठ 17. 10 (with variations). व्यव. नि. p. 440 quotes similar verses of हारीत and बृहस्पति. Compare विष्णुध. सू. 15. 42 also. 'भ्राजृन्तराणां पुत्रवत्त्वोक्तिरभिप्रय तात इतिवद्गौरवसप्रशंसार्था। यत्तु संग्रहकारेणोक्तं यद्येकजाता बहवो भ्रातरस्तु सहोदराः। एकस्यापि सुते जाते सर्वे ते पुत्रिणः स्मृताः—इति तस्य ... देवस्वामिना तात्पर्यमर्थ उक्तः—उभयत्रापि नान्यः प्रतिनिधिः कार्य इति ग्रन्थेन। स्मृतिच. II. p. 289. Vide स. वि. p. 395 for quotation of this passage of स्मृतिच.

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¹²⁸¹ ब्राह्मणानां सपिण्डेषु कर्तव्यः पुत्रसंग्रहः । तदभावेऽसपिण्डो वा अन्यत्र तु न कारयेत् ॥ शौनक; सपिण्डापत्यकं चैव सगोत्रजमथापि वा । अपुत्रको द्विजो यस्मात्पुत्रत्वे परिकल्पयेत् । समानगोत्रजाभावे पालयेदन्यगोत्रजम् । शाकल; both q. by दत्त. मी. p. 41 and 48, and दत्त. च. pp. 5-6. A comparatively late work called असपिण्डासगोत्रपुत्रपरिग्रहपरीक्षा (composed after about 1700 A. D., since it mentions the दत्तकमीमांसा and संस्कारकौस्तुभ) after an elaborate discussion of Ṛg. VII. 4. 7-8 and the above passages of Saunaka and Sākala states the following conclusion (D. C. College Ms. No. 133 of 1886-92 folio 16 b) 'यथा ... दाक्षिणात्यैः समर्थितं मातुलकन्यापरिणयनं ... तथा असपिण्डासगोत्रपरिग्रहोऽपि यस्मिन् देशे येषां कुलेऽनादिसिद्धस्तेषामेव नान्येषामिति व्यवस्थितिः'.

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As to the age of the boy to be adopted there is great divergence among the medieval writers which is also reflected in the case law. In this connection certain verses of the Kālikāpurāṇa assume¹²⁸² great importance. The V. Mayūkha and the D. C.

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¹²⁸² पितुर्गोत्रेण यः पुत्रः संस्कृतः पृथिवीपते । आचूडान्तं न पुत्रः स पुत्रतां याति चान्यतः ॥ चूडोपनयसंस्कारा निजगोत्रेण वै कृताः । दत्ताद्यास्तनयास्ते स्युरन्यथा दास उच्यते । ऊर्ध्वं तु पञ्चमाद्वर्षान्न दत्ताद्याः सुता नृप । गृहीत्वा पञ्चवर्षीयं पुत्रेष्टिं प्रथमं चरेत् ॥ कालिकापुराण q. by दत्त. मी. p. 122, नि. सि. III पूर्वार्ध p. 250, व्य. मयूख p. 114, दत्त. च. pp. 31-33 (reads यदि स्यात्कृतसंस्कारो यदि चातीतशैशवः ग्रहे पञ्चमाद्वर्षात् पुत्रेष्टिं), सं. कौ. p. 169 (reads चूडाद्या यदि and अन्यथा अदास). The cūḍā was usually performed in the third year and the locks that were kept on the boy's head depended upon the number of the *pravara* sages of the gotra of the father. Vide H. of Dh. vol. II. pp. 260-265 for cūḍākaraṇa. So if a boy (who was असगोत्र) was adopted after cūḍā, his position would be this that some संस्कारs would have been performed with one gotra, while others would be performed with another gotra i. e. he would thus belong to two gotras. To prevent this and to complete his affiliation into the adoptive family the putreṣṭi had to be performed.

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hold that the passage is of doubtful authenticity (as the verses are not found in several mss.), while the D. M. and the Nirṇayasindhu hold them to be genuine and the Saṁ. K. pp. (169-172) after referring to these views states that those verses are opposed to what is stated in the Ait. Br. about Śunaḥśepa who was adopted by Viśvāmitra as a son even after upanayana. The verses are: 'O King! that son, whose *saṁskāras* up to (including) the *cūḍā* (tonsure) ceremony are performed with the gotra of his (natural) father, does not (i. e. cannot) attain the status of the adopted son of another. When the ceremonies of cūḍā and upanayana are performed under his own gotra (by the adoptive father) the *dattaka* and the other kinds become (recognised as) sons (in the adoptive family); otherwise they are called *dāsa* (slave). After the fifth year the adopted son and the rest cannot be (recognised as) sons. Having taken one who is five years old, one (the adopter) should first perform the *putreṣṭi*. These verses state four propositions: (1) If all saṁskāras from *jātakarma* to *cūḍā* (i. e. including it) have been performed in the family of birth that boy cannot be adopted in another family; (2) if a boy's *cūḍā* and other later ceremonies are performed in the family of adoption he is fully an adopted son; (3) a boy over five years of age cannot be adopted at all; (4) a boy whose cūḍā has been performed in the family of birth may be adopted up to five years, provided the rite called putreṣṭi¹²⁸³ is first performed in the adoptive family before any other ceremony is performed on the adopted boy. The D. M. says that the best time for adoption is up to three years, then from three years to five is the next best (*gauṇa*) and that after five no boy can be adopted. The D. C. (p. 36) holds that a boy of the three higher classes can be adopted up to *upanayana* and that a śūdra boy can be adopted till his marriage. The Nirṇayasindhu seems to be of the same opinion. The V. Mayūkha¹²⁸⁴ and Saṁ. K. both hold that even a boy not of the same gotra may be taken in adoption after upanayana or after marriage and even when the person to be adopted has himself had a son. In Bengal, Benares¹²⁸⁵ and Bihar the courts hold that the boy must be adopted before *upanayana*. The same rule holds good in Madras¹²⁸⁶; but there it is further held that if the boy to be adopted is of the same gotra as the adopter, the adoption may be made after upanayana but before marriage. In Bombay a person may be adopted at any age, even after marriage and even after he has had children and he may be even older than the adopter.¹²⁸⁷ In the whole of India, a śūdra may be adopted only before his marriage, but in the Bombay Presidency the adoption of a married man and of one having even a child is allowed also among śūdras¹²⁸⁸.

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¹²⁸³ About the पुत्रेष्टि, the दत्त. मी. p. 132 says 'अग्नये पुत्रवते पुरोडाशमष्टाकपालं निर्वपेदिन्द्राप पुत्रिणे पुरोडाशमेकादशकपालं प्रजाकामः । अग्निर्देवास्मै प्रजां प्रजनयति वृङ्गामिन्द्रः प्रयच्छतीति वाक्ये प्रजाफलकत्वमिष्टेः श्रूयते । तद्यत्रात्युत्पन्ना प्रजा तत्र तद्युत्पत्तिरेव भाव्या यत्र तूत्पन्ना परिगृह्यते तत्रोत्पत्तेरभावात्तस्याः प्रजात्वमेव भाव्यमिति कल्प्यते प्रकृतविध्यन्यथानुपपत्तेः ।'. The सं. कौ. p. 173 contains the words अग्नये ... प्रयच्छति. Vide आश्व. श्रौ. II. 10 'पुत्रकामेष्ट्यामाग्निः पुत्री.'

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¹²⁸⁴ दत्तकस्तु परिणीत उत्पन्नपुत्रोपि च भवतीति तातचरणाः । युक्तं चेदं बाधकाभावात्. व्य. म. p. 114. When Nīlakaṇṭha says that the three verses of the Kālikāpurāṇa refer to the adoption of an asagotra boy, that is not his real opinion; he only concedes that that passage may, if at all, refer to the adoption of an asagotra boy. एवं च चूडाद्या इत्येतद्गुणसंविज्ञानबहुव्रीहिणा द्विजातीनामुपनयनलाभः शूद्रस्य तु विवाहाविलाभः । दत्त. च. p. 36.

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¹²⁸⁵ Vide *Ganga Sahai v. Lekhraj* 9 All. 253 (at p. 306 the translations of the Kālikāpurāṇa verses by Sutherland and Colebrooke are quoted and at p. 318 the authenticity of those verses is held to be extremely doubtful); *Raja Mukund v. Jagannath* 2 Patna 469, 477 (where the passage of the Kālikāpurāṇa is quoted), in which it was held that a boy may be adopted till upanayana and that it does not matter if the cūḍā ceremony is performed in the family of birth and the putreṣṭi is omitted at the time of adoption; *Chandreshwar v. Bisheshwar* 5 Patna 777 at p. 844 (where the passage as to five years was held not binding); vide *Surabala Devi v. Sudhirkumar* AIR (1944) Cal. 265.

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¹²⁸⁶ *Viraragava v. Ramalinga* 9 Mad. 148 (F. B.) for the validity of the adoption of a sagotra after upanayanya and *Pichuvayyan v. Subbayyan* 13 Mad. 128 for the invalidity of a married man's adoption.

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¹²⁸⁷ Vide *Dharma v. Ramkrishna* 10 Bom. 80, 84 (where it is said that though Nīlakaṇṭha's explanation that the Kālikāpurāṇa verses refer to an asagotra causes a difficulty, yet it does not follow that he adopts that interpretation as his own) in which the adoption of a married asagotra brāhmaṇa was upheld; *Kalgavda v. Somappa* 33 Bom. 669 where the adoption of a married man having a son was upheld, but it was decided that the son born before adoption remained for purposes of inheritance in the natural family; *Balabai v. Mahadu* 48 Bom. 387 (where the adopted man was older than the adopter).

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¹²⁸⁸ *Lingayya v. Chengalammal* 48 Mad. 407 where it was held that even a śūdra cannot be adopted after his marriage, (which decision follows the D. C.).

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Śaunaka required that the boy to be adopted must be *putracchāyāvaha*¹²⁸⁹ (one who bears resemblance to or is a reflection of the *aurasa* son). This has led to differing explanations by the commentators and contradictory decisions in the several Indian High Courts. The D. M. and D. C. (p. 21) both explain that the resemblance consists in the possibility of being procreated by the adopter himself by *niyoga* and the like. The meaning of the D. M. is: A brother's son or a sapiṇḍa's son or a sagotra's son can be adopted because the adopter could have procreated a son by the practice of niyoga on the wife of a brother or a sapiṇḍa or a sagotra (according to the rules of niyoga); but he could not have done so as regards his mother, or grandmother, daughter or sister or his mother's sister. Therefore a man cannot adopt his own brother, paternal or maternal uncle, a daughter's son or a sister's son and the like. One strange thing is that, though *niyoga* had been forbidden for many centuries before the D. M., the author of it brings in the rules of the long obsolete practice of *niyoga*¹²⁹⁰ to find out who could or could not be adopted. But stranger things were to happen. Sutherland who translated both the D.M. and the D.C. explained in his notes the word ‘niyogādinā’ as ‘by such an appointment or marriage and the like’. Vide Stoke's Hindu Law Texts p. 590 (Dattakamīmāṁsa, sec. V. *placitum* 16 note). There was no warrant for introducing the word ‘marriage’ after ‘niyoga’.

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The rules of niyoga are different from those of marriage. The judges most of whom were generally ignorant of Sanskrit and had yet to decide cases among Hindus according to Hindu Law as understood by them (vide 26 I. A. 113 at page 128 about the ignorance of Sanskrit among judges) seized upon this explanation and evolved the curious rule that no one could be adopted whose mother the adopter could not have married in her maiden state (i. e. the relationship has reference to a time *prior* to marriage). This is still the law in all Presidencies¹²⁹¹ except Bombay. Although the D. M. stated that the boy to be adopted must be capable of being procreated by niyoga, at another place it remarks, after quoting verses of Śaunaka¹²⁹² and Śākala, that a boy of another gotra may be adopted except a daughter's son, a sister's son and a mother's sister's son. The Bombay High Court holds that any one may be adopted except these three (*vide Ramchandra v. Gopal* 32 Bom. 619, *Walbai v. Heerbai* 34 Bom. 491 holding that a man cannot adopt his mother's sister's son, *Ramkrishna v. Chimnaji* 15 Bom. L. R. 824 holding the adoption of father's sister's son valid). Very strange results have followed from this viz. the Bombay High Court has upheld the validity of the adoption as a son by a man of his own half-brother (*vide Gajanan v. Kashinath* 39 Bom. 410), of his own maternal uncle's son, and the adoption by a widow of her deceased husband's son-in-law (*vide Sitabai v. Parvatibai* 47 Bom. 35).

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It should be noted that the Dvaitanirṇaya or Dharmadvaitanirṇaya¹²⁹³ (of Śaṅkarabhaṭṭa, father of Nīlakaṇṭha) and the V. Mayūkha both hold after a very abstruse reasoning based on several Mīmāṁsā rules, that men of the three higher classes may adopt a daughter's son, a sisters's son or a mother's sister's son and that a śūdra must adopt one of these if available in preference to any one else. The Bombay High Court follows the interpretation of Śaunaka's verse given by Nandapaṇḍita in preference to Nīlakaṇṭha's, but in its turn disregards the authority of Nandapaṇḍita who forbade the adoption of a brother or uncle. It would have been far better if it had generally brushed aside everywhere the dicta of Nandapaṇḍita and preferred the interpretation of the Mayūkha. Popular sentiment is in favour of the daughter's son or sister's son being adopted, as they are the nearest and often the dearest relations, and yet the High Court shuts the door against them, while it opens it ajar for the adoption of a brother or maternal uncle or his son or one's own daughter's husband, which appears absurd to people. Besides the High Courts have recognised the adoption even of a daughter's son¹²⁹⁴ on the ground of custom by Deśastha smārta brāhmaṇas in the Dharwar District (vide *Sundrabai v. Hanmant* 56 Bom. 298), by Telugu brāhmaṇas (*Viswasundara v. Somasundara* 43 Mad. 876). Śūdras can adopt a daughter's or sister's or mother's sister's son all over India. The D. M.

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went so far as to say that a widow could not adopt *her* brother's son.¹²⁹⁵ The D. M. ignored the fact that the widow adopts to her husband (and not to herself) who bore no relation to his wife's brother's wife and who could have himself adopted that son. The Bombay High Court and the Privy Council have discarded this absurd proposition of the D. M. Pannalal in 'Kumaun Local customs' notes that in that part of India a daughter's or a sister's son may be adopted (p. 14 para 56). It has been recently held that the adoption of the illegitimate son of a woman even among śūdras is invalid. Vide *Apya v. Ramakka* I. L. R. (1941) Bom. 350. This was relied upon for holding that a woman cannot give in adoption an illegitimate son among Lingayats in *Tirkangauda v. Shivappa* A. I. R. (1944) Bom. 40.

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¹²⁸⁹ पुत्रच्छाया पुत्रसादृश्यं तच्च नियॊगादिना स्वयमुत्पादनयोग्यत्वं यथा भ्रातृसपिण्डसगोत्रादिपुत्रस्य । न चासम्बन्धिनि नियॊगासम्भवः । बीजार्थं ब्राह्मणः कश्चिद्धनेनोपनिमन्त्र्यतामिति स्मरणात् । ततश्च भ्रातृपितृव्यमातुलदौहित्रभागिनेयादीनां निरासः पुत्रसादृश्याभावात् । ... तथा प्रकृते विरुद्धसम्बन्धपुत्रो वर्जनीय इति । यतो रंतियोगः सम्भवति तादृशः कार्य इति यावत् । दत्त. मी. pp. 144–145 and p. 147. The words पुत्रच्छाया ... योग्यत्वं occur in दत्त. च. also (p. 21). The half verse बीजार्थं ... मन्त्र्यताम् is almost like आदिपर्व 105. 2.

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¹²⁹⁰ For the rules of *niyoga* vide H. of Dh. vol. II. pp. 599–601.

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¹²⁹¹ Vide *Minakshi v. Ramanada* 11 Mad. 49 (F. B.), *Bhagwan Singh v. Bhagwan Singh* L. R. 26 I. A. 153, 160, in the latter of which the texts of Saunaka and Sākala are relied upon.

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¹²⁹² तथा च शौनकः । ... दौहित्रो भागिनेयश्च शूद्रैश्च क्रियते सुतः । ब्राह्मणादित्रये नास्ति भागिनेयः सुतः क्वचित् । ... तदेतत्स्पष्टमाचष्टे शाकलः । समानगोत्रजाभावे पालयेदन्यगोत्रजम् । दौहित्रं भागिनेयं च मातृस्वसृसुतं विना । इति । एतेन भागिनेयपदं दौहित्रमातृष्वसेययोरुपलक्षणमिति स्पष्टमेव सिद्धम् । युक्तं चैतत्, विरुद्धसम्बन्धस्य त्रिष्वपि समानत्वात् । दत्त. मी. pp. 80 and 101, दत्त. च. p 8; दत्त. च. p. 6 quotes शाकल's verse. The दत्त. मी. elsewhere (p. 98) and the सं. कौ. p. 158 read शूद्राणां विहितः सुतः and the सं. कौ. p 176 reads ‘दौहित्रं भागिनेयं वा शूद्राणां चापि दापयेत्,’ while the धर्मद्वैतनिर्णय (p. 105) and the व्य. मयूख p. 110 read दौहित्रो भागिनेयश्च शूद्रस्यापि च दीयते. वृद्धगौतम q. by the दत्त. मी. p. 146 reads ‘ब्राह्मणादित्रये नास्ति भागिनेयः सुतः क्वचित् ।’

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¹²⁹³ Vide the text of the V. Mayūkha p. 111 and notes pp. 173-179 in my edition of the V. Mayūkha for explanation. The Dvaitanirṇaya (p. 105) concludes : तेन ब्राह्मणादिभिरपि दौहित्रभागिनेयौ पुत्रत्वेन ग्राह्याविति सिद्धम् । तथा शूद्रेण सति सम्भवे दौहित्रभागिनेयावेव ग्राह्यौ. The V. Mayūkha p. 111 follows the Dvaitanirnaya and states that usage is in accordance with its explanation : ‘विस्तृतं चैतद् द्वैतनिर्णये तातचरणैः शिष्टाचारोप्येवम् ।’. In *Gopal v. Hanmant* 3 Bom. 273 at p. 280 it was held that Nīlakaṇṭha also interdicted the adoption of the daughter's son and of the other two by the regenerate classes. It is submitted that this view as to the position of the V. Mayūkha on this point is entirely wrong.

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¹²⁹⁴ It may be noted that the question of the adoption of the daughter's son cropped up even in the times of the Peshwas. In 'Selections from Peshwa's Records' vol. 43 No. 146 pp. 116-117 the opinion of Rāmśāstri, the Chief Justice of the Peshwa's court, is sought on the adoption of a daughter's son from the Ratnagiri District. The Pṛthvīrāja Rāsau states that the famous Chohan hero Pṛthvīrāja had been adopted by his maternal grand-father Anaṅgapāla of the Tomara dynasty of Delhi. But modern historians say that this is imaginary (vide 'History of Medieval India' by Prof. Ishwari Prasad p. 9 n.).

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¹²⁹⁵ तदाह वृद्धगौतमः। ब्राह्मणादिवितये नास्ति भागिनेयः सुतः कचित् । इति । भागिनेयपदं भ्रातृपुत्रस्याप्युपलक्षणम् । तेन भगिन्या भ्रातृपुत्रो न ग्राह्यः । दत्त. मी. pp. 56-57. Vide *Bai Nani v. Chunilal* 22 Bom. 973, *Puttulal v. Parbati* 42 I. A. p. 155, where after admitting that the Dattakamīmāṁsā is embedded in law, the P. C. say that caution is required in accepting the glosses of Nanda Paṇḍita where they deviate from or add to the smṛtis (p. 161).

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It is now necessary to say a few words about the *dvyāmuṣyāyaṇa*. A *dattaka* is of two kinds¹²⁹⁶, *kevala* (simple or ordinary) and *dvyāmuṣyāyaṇa* (the son of two fathers). When a man gives *his only* son in adoption to another under an agreement that he is to be considered as the son of both the natural father (*janaka* or *janaka-pitṛ*) and of the adoptive father (*pālaka*), the son so given is called *dvyāmuṣyāyaṇa*. The Bombay High Court has held that in order to constitute a *dvyāmuṣyāyaṇa* an express agreement as stated above must be proved even when one brother adopts the only son of another¹²⁹⁷. A dvyāmuṣyāyaṇa inherits both in the natural and adoptive families. The word dvyāmuṣyāyaṇa was employed in some of the smṛtis as applicable to all such sons as the dattaka, krīta¹²⁹⁸. The V. Mayūkha quotes a prose passage from Kātyāyana (which is attributed to Paiṭhīnasi in D. C.) and the V. Mayūkha, D. M. and D. C. all quote a verse (which is ascribed to Pravarādhyāya by the first and to Pārijāta by the D. M.) that supports this. The D. M. and D. C. both quote two sūtras of Satyāṣāḍha and Śabara's gloss (*bhāṣya*) thereon in which the *kṣetraja* is called *nitya dvyāmuṣyāyaṇa* and the dattaka and others are called *anitya dvyāmuṣyāyaṇa*. Yāj. II. 127 and Baud. Dh. S. II. 2. 21 provide that a kṣetraja is the son of both the begetter and of the husband of the wife on whom the son is procreated. Therefore such a son is called *nitya dvyāmuṣyāyaṇa* (because he is always the son of two fathers). When the kṣetraja became obsolete and forbidden, the only dvyāmuṣyāyaṇa was an only son taken in adoption with a stipulation as described above. About the dattaka Manu IX. 142 states the general rule that the dattaka loses the gotra of his genetive father and assumes that of the adopter. But a dattaka belonged to two gotras according to some, if his saṁskāras up to *caula* were performed in his natural family and the saṁskāra of upanayana and those that follow were performed in the adoptive family. Therefore it was not a general proposition that a dattaka always belonged to two gotras. If all the saṁskāras from *jātakarma* were performed by the adopter, then the dattaka would take the gotra of the adopter alone. Hence the sons called dattaka and 'the bought' were styled *anitya dvyāmuṣyāyaṇas* (who were not in all cases dvyāmuṣyāyaṇas). The D. M. states this¹²⁹⁹ twofold division of dvyāmuṣyāyaṇas and employs the words *nityavat* or *nitya* and *anityavat* or *anitya* to denote the two varieties and restricts the former only to a son adopted with a stipulation as stated above. The kṣetraja became quite obsolete many centuries ago and the courts have held that the anitya dvyāmuṣyāyaṇa is also now obsolete.¹³⁰⁰ It is now held that every adoption is presumed to be in the simple (*kevala*) form, unless a stipulation that the boy will be the son of both is proved (when it will be a dvyāmuṣyāyaṇa adoption).

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¹²⁹⁶ अयं च दत्तको द्विविधः केवलो द्वयामुष्यायणश्च । संविदं विना दत्त आद्यः । आवयोरसाविति संविदा दत्तस्त्वन्यः । व्य. मयूख p. 114. The दत्त. च. (pp. 61, 66) employs the word शुद्धदत्तक for केवलदत्तक. Vide *Laxmipatirao v. Venkatesh* 41 Bom. 315, *Huchrao v. Bhimarao* 42 Bom. 277. It has already been seen (p. 659) that the Mit. employs the words dvyāmuṣyāyaṇa and kṣetraja as synonyms. Nār. (dāyabhāga 23) appears to use it in the same sense, 'द्विषामुष्यायणा दद्युर्द्वभ्यां पिण्डोदके पृथक् । रिक्थादधं समादद्युर्बीजिक्षेत्रिकयोस्तथा ॥. In this verse Nār. does not employ the form dvyāmuṣyāyaṇa, but the word āmuṣyāyaṇa with the adverb 'dviḥ' meaning 'twice'. The word dvyāmuṣyāyaṇa is made up of 'dvi' (two) and 'āmuṣyāyaṇa' (issue of this man, issue of so and so). The word āmuṣyāyaṇa occurs in the Tai. Br. II. 7. 7. 7 (अपां य ऊर्मी रसस्तमह्मस्मा आमुष्यायणाम ओजसा वीर्याय गृह्णामि) and in the Atharvaveda IV. 16. 9, X. 5. 36 and 44, XVI. 7. 8 in the form 'āmuṣyāyaṇa amuṣyāḥ putra'. In the Hira. gr. I. 9. 19 we have इदमहमामुष्यायणस्य पाप्मानमवगूहानि, where Mātṛdatta explains: अमुष्यापत्यं आमुष्यायण इति. Similar words occur in the Bhāradvāja gr. II. 19. Kātyāyana has vārtika 2 'आमुष्यायणामुष्यपुत्रिकेत्युपसंख्यानम्' on Pāṇ. VI. 3. 21. 'Āmuṣyāyaṇa' is formed from 'amuṣya' (of this or that man) in the sense of 'apatya' acc. to Pāṇini IV. 1. 99 (naḍādibhyaḥ phak). In the Āśv. Śr. S. (Uttaraṣaṭka 6. 13) the word 'dvipravacana' is employed for dvyāmuṣyāyaṇa, 'अथ य एते द्विप्रवाचना यथैतच्छौङ्गशैशिरयः' on which Nārāyaṇa explains, य एते द्विप्रवाचना द्वाभ्यामृषिप्रवचनाभ्यामुपेताः यथैते शौङ्गशैशिरयः द्वयामुष्यायणाः शौङ्गेयस्य क्षेत्रे शैशिरेयबीजोत्पन्नानां वंशाः.

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¹²⁹⁷ Vide *Laxmipatirao v. Venkatesh* 41 Bom. 315 and *Huchrao v. Bhimarao* 42 Bom. 277.

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¹²⁹⁸ यत्तु-अथ वोढ़तक्रक्रीतपुत्रिकापुत्राः परिग्रहेणानान्यैषान्ते द्वयामुष्यायणा भवन्ति—इति द्वयामुष्यायणाव्युपक्रम्य कात्यायनः । व्य. मयूख p. 115 ; दत्त. च. p. 46 ascribes this to पैठीनसि and reads ; अथ दत्तकक्रीतकृत्रिमपुत्रि ... ... ग्रहेणार्वेण येऽत्र जातास्तेऽसङ्गतकुलीना द्वयामुष्यायणा भवन्तीति ।; द्वयामुष्यायणाका ये स्युर्हत्तकक्रीत- कादयः । गोत्रद्वयेप्यनुद्वाहः शौङ्गशैशिरयोर्यथा । q. from प्रवराध्याय by व्य. मयूख p. 118.

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¹²⁹⁹ द्विविधा दत्तकादयो नित्यवद् द्वयामुष्यायणा अनित्यवद् द्वयामुष्यायणाश्च । तत्र नित्यवद् द्वयामुष्यायणा नाम ये जनकप्रतिग्रहीतॄभ्यामावयोरेयं पुत्र इति संप्रतिपन्नाः । अनित्यद्वयामुष्यायणास्तु ये चूडान्तैः संस्कारैर्जनकेन संस्कृता उपनयनादिभिश्च प्रतिग्रहीत्रा । तेषां गोत्रद्वयेनापि संस्कृतत्वाद् द्वयामुष्यायणत्वं परं त्वनित्यम् । जातमात्राद्येव परिग्रहे गोत्र- द्वयेन संस्काराभावात् तदयं प्रतिग्रहीतृगोत्रमेव । तदिदं सर्वमभिप्रेत्याह सत्याषाढः । 'नित्यानां द्वयामुष्यायणानां द्वयोः' इति सूत्रेण नित्यद्वयामुष्यायणानां गोत्रद्वये प्रवरसम्बन्धमुक्त्वा तमेवानित्येष्वप्यतिदिशति 'दत्तकादीनां तु द्वयामुष्यायणवत्' इति सूत्रेण । वृत्त. मी. pp. 138-39; vide दत्त. च. p. 44 for the सूत्र of सत्याषाढ.

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¹³⁰⁰ Vide *Basappa v. Gurlingawa* 57 Bom. 74, 77, where the two kinds of dvyāmuṣyāyaṇas are mentioned and it is stated that the anitya dvyāmuṣyāyaṇa is now obsolete. [^1300 a]: Vide *Ganpatrao v. Balkrishna* I. L. R. (1942) Bom. 340.

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When a man is adopted in the dvyāmuṣyāyaṇa form, his son born after such adoption has been held to inherit as grandson to the adoptive father, if the dvyāmuṣyāyaṇa son died before the adoptive father.

v4.c63.t2.41.1

*Ceremonies of Adoption.*—The most essential ingredient in adoption is the giving of the boy by the natural father and the taking of the boy by the adopter with the intention to transfer the boy to the family of the adopter. Another requisite (in some cases) is the homa called *dattahoma*¹³⁰¹ which as described by Śaunaka and Baud. is given¹³⁰² in the Appendix. It is not necessary that the *dattahoma* must be performed immediately after the giving and taking, but it may be performed later and its performance may be delegated to others when the giver or taker is a widow or a śūdra or is ill &c. Although in Vedic times women composed hymns and although Hārīta and Yama stated that women had the upanayana performed on them and could study the Veda (H. Dh. vol. II pp. 293-295), in later times it was held that women could not study the Veda, could not repeat Vedic mantras and therefore could not perform any homa (including *dattahoma*). Therefore some writers said that a widow could not adopt at all, while others like the V. Mayūkha said that women are to be assimilated to śūdras and so just as a śūdra can get the dattahoma performed through a brāhmaṇa, so a widow, though she cannot herself engage in homa, may employ a brāhmaṇa to perform the dattahoma. Vide H. Dh. vol. II. pp. 365-368 (for deterioration in the position of women), and note 1262 above and V.

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Mayūkha quoted below.¹³⁰³ It has been held that the *dattahoma* is not¹³⁰⁴ necessary among twice-born classes if the boy to be adopted belongs to the same gotra as that of the adoptive father. Jolly (in T. L. L. p. 160) states that the Dattakadarpaṇa refers to a text of Yama from the Sarasvatīvilāsa to the effect that *homa* is not absolutely essential in all cases. From Colebrooke's Digest V. 4 CCLXXIII it appears that Jagannātha held the same view. The Dharmasindhu remarks that in certain countries an adoption of a sagotra sapiṇḍa boy can be validly effected with the mere assent of the giver and adopter without Vedic ceremonies. There is a good deal of conflict in the case law on this point, which is passed over. Among śūdras no *homa* is necessary. The ceremony of adoption as described by Baud. gṛ. śeṣasūtra II. 6. 4-9 (which is probably the oldest on record and which was the one to be followed by the Taittirīyas or followers of the Black Yajurveda, according to D. M., Saṁ. K. p. 177 and the Dharmasindhu p. 161) is as follows: When about to take (in adoption) the adopter makes ready (or collects) the following viz. two pieces of cloth, two ear-rings, a finger ring, an ācārya (officiating priest) who is well versed in the Veda, a bundle of kuśa grass, fuel sticks of palāśa (Butea Frondosa). Then in the midst of invited relatives, after informing the ruler, he serves food to brāhmaṇas in the assembly hall or in the middle of the house.

v4.c63.t2.41.3

He (the adopter) makes (the brāhmaṇas) pronounce the benedictions 'May the day be auspicious! May you fare well! May there be prosperity!' and performs the acts (usual in all homas) from drawing lines on the altar up to carrying forward the Praṇītā water. Vide H. of Dh. vol. II pp. 209-212 for the procedure common to all homas. Then he goes into the presence of the giver and begs of him ‘give me your son’. The other one (the giver) says ‘I give’. He (adopter) then takes hold of the boy with the words ‘I accept thee for the continuity (of my family)’. Then he decks (the boy) with the pieces of cloth, the ear-rings, the finger ring and performs the acts from laying fuel sticks round the altar up to the offering of oblations into fire; he offers boiled rice into fire with the mantra ‘yastvā hṛdā’ (Rg. V. 4. 10 or Tai. S. I. 4. 46. 1) as a *puronuvākyā*¹³⁰⁵ (prayer of invitation) and with the mantra ‘yasmai tvaṁ sukṛte’ (Rg. V. 4. 11, Tai. S. I. 4. 46. 1) as a *yājyā* (prayer of worship or offering). Then having offered oblations of clarified butter with the vyāhṛtis¹³⁰⁶ he performs the acts from the offering to Agni Sviṣṭakṛt down to the giving of the cow and presents. He (the adopter) gives as dakṣiṇā (fee) to the priest these very pieces of cloth and rings (with which the boy was decked).

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¹³⁰¹ तस्माद् दत्तकादिषु संस्कारनिमित्तमेव पुत्रत्वमिति सिद्धम् । दानप्रतिग्रहहोमाद्यन्यतमाभावे तु पुत्रत्वाभाव एवेति । दत्त. मी. p. 161.

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¹³⁰² Vide Appendix.

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¹³⁰³ यच्छुद्धिविवेक उक्तं वैदिकमन्त्रसाध्यहोमवति पुत्रप्रतिग्रहे शूद्रस्यानधिकार इति तदपास्तम् । समन्त्रकहोमस्तु तेन विप्रद्वारा कार्यः । ... स्त्रिया अपि शूद्रवदेवाधिकारः । स्त्रीशूद्राश्च सधर्माणः-इति वाक्यात् । व्य. मयूख p. 112 (text). Vide H. Dh. vol. II. pp. 594-595 notes 1392-1395 for other texts treating women (of higher castes) and śūdras alike.

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¹³⁰⁴ Vide *Valubai v. Govind* 24 Bom. 218, *Bal Gangadhar v. Shrinivas* 39 Bom. 441 (P. C.), *Govindayyar v. Dorasami* 11 Mad. 5 (F.B.); *Muthuvayyangar v. Thiruvangadammal* I.L.R. (1942) Mad. p. 682. स्त्रियाश्च होमासम्भवात्तद्यपि व्रतादिप्रतिग्रहद्वारा होमादि कारयेदिति हरिनाथादयः । सम्बन्धतस्त्वेट्येवम् । एवं शूद्रस्यापि स्त्रीशूद्राश्च सधर्माण इति स्मृतेः । अत एव शूद्रकर्तृकहोमो विप्रद्वारेव पराशरेणोक्तः । निर्णयसिन्धु III पूर्वार्ध p. 249; क्वचिद्देशे वैदिकविधिं विनापि दातृग्रहीतृसंमतिराजपुरुषानुमत्यदिलौकिकव्यापारमात्रेणोपनयनादिसंस्कारकरणमात्रेण वा सगोत्रसपिण्डे पुत्रत्वसिद्धिर्व्यवहारो दृश्यते तत्र मूलं नोपलभ्यते । धर्मसिन्धु III पूर्वार्ध p. 158.

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¹³⁰⁵ For the meaning of Puronuvākyā and Yājyā, vide H. of Dh. vol. II. p. 1060 n. 2372 and pp. 1058–59 respectively. For the offering to Agni Sviṣṭakṛt vide H. of Dh. vol. II. p. 208 and appendix p. 1257 n. 481.

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¹³⁰⁶ The vyāhṛtis are the mystic syllables *bhūḥ*, *bhuvaḥ* and *svaḥ*. The offerings will be accompanied with these syllables as follows: ‘om bhūḥ svāhā’, ‘om bhuvaḥ svāhā’, ‘om svaḥ svāhā’, ‘om bhūr bhuvaḥ svaḥ svāhā’.

v4.c63.t2.48

The procedure laid down by Śaunaka, who appears to be much later than Baud., is somewhat different (though there is a good deal common to both) and is meant for the students of the Ṛgveda (acc. to Saṁ. K. p. 175). A few salient points may be noted. The adopter should fast the previous day, he should offer *madhuparka* to the officiating priest, should perform all the details from the placing of fuel sticks on the fire up to the purification of clarified butter with the blades of kuśa grass. The giver recites (when begged) the five verses beginning with ‘ye yajñena’ (Ṛg. X. 62. 1–5) and the adopter holds the boy with both hands while repeating the mantra ‘devasya tvā’ (Āśv. gṛ I. 20. 4), mutters the ṛk ‘aṅgād-aṅgād’ (quoted above on p. 641 *n.* 1202) and smells the boy on his head. The adopter offers boiled rice with Ṛg. V. 4. 10, X. 85. 38, X. 85. 41–46. A much more elaborate procedure is set out in the V. Mayūkha (pp. 120–122 text) and the Dharmasindhu (III pūrvārdha pp. 160–161).

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*The results of adoption*—Adoption has the effect of transferring the adopted person from his natural family into the adoptive family. Adoption confers upon the adopted person the same rights and privileges in the family of adoption as the son of the body (*aurasa*) except in a few well defined cases. The basic text on this point is that of Manu¹³⁰⁷ IX. 142 which may be literally rendered as follows: 'The son given should not take the *gotra* (the family name) and the wealth of his natural father; the *piṇḍa* (the cake of boiled rice offered to deceased ancestors in śrāddhas) follows the *gotra* and the wealth (i. e. is invariably concomitant with them); of him who gives (his son in adoption) the *svadhā* (obsequial rites) ceases (so far as that son is concerned)'. The preceding verse (Manu IX. 141) states that the adopted son takes the wealth of his adoptive father and all that this verse says is that, after adoption, the son given in adoption does not take the name of his natural father and has no right in the wealth that then is the natural father's and that he does not perform the obsequial and śrāddha rites for his natural father. But from this verse a learned Hindu Judge derived the sweeping proposition that 'the theory of adoption depends upon the principle of a complete severance of the child adopted from the family in which he is born, both in respect to the paternal and maternal line, and his complete substitution into the adopter's family as if he were born in it'.

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There is no warrant for the idea of complete severance emphasized here. This dictum was followed in many cases and was accepted by the Privy Council¹³⁰⁸. Another great Judge went so far as to say that 'an absolute adoption appears to operate as birth of the boy in the family of adoption and as civil death in the family of birth, having regard to the legal consequences that are incidents of such adoption' ¹³⁰⁹. But then the P. C. felt that matters were being carried too far and administered the warning ¹³¹⁰ that "As has been more than once observed the expressions 'civilly dead or as if he had never been born in the family' are not for all purposes correct or logically applicable but they are complimentary to the term 'new birth'." We have to see what construction was put upon the verse of Manu by authoritative digests. The V. Mayūkha explains Manu IX. 142 and arrives at the conclusion that the four words *gotra*, *riktha*, *piṇḍa* and *svadhā* are not to be taken literally but they are only used to indicate all those consequences only in relation to the natural father and the like that are brought about by their connection with the *piṇḍa* and the verse of Manu conveys the cessation of all those consequences only. It further adds that the son on being given away in adoption ceases to have similar relationship to his brother, paternal uncle (in the family of birth). It should be noted that the V.

v4.c63.t2.49.3

Mayūkha does *not* say that the son given away is dead to the family of birth or ceases to have any connection whatever with the members of the family of birth, but restricts the cessation of relation to the offering of piṇḍa and the taking of the estate after he is adopted. The D. M. quotes ¹³¹¹ the Sm. C. (II. 289) and holds that by the gift the adopted son ceases to have the same gotra as the giver. The D. C. (pp. 23-24) states ¹³¹² the same proposition, without naming the Sm. C. The learned Judges who had to decide cases of adoption, even if they knew Sanskrit, do not generally appear to have consulted authoritative works other than the few that had been translated and were quite unaware as to whether even the cessation of the piṇḍa and gotra and of the right to wealth when a son was given away was so universally accepted by the leading Dharmaśāstra works as they thought. The Sarasvatīvilāsa (p. 394) quotes a text of Viṣṇu ¹³¹³ that even the adopted son should perform the obsequial rites of the natural father and explains that Manu IX. 142 applies when the natural father has no issue at the time of his death. Rudraskanda on Khādira gṛ. III. 5. 16 says the same. Kamalākara, the author of the Nirṇayasindhu ¹³¹⁴ and a first cousin and contemporary of Nīlakaṇṭha expressly states that Manu IX. 142 only applies when the natural father has a son or sons (other than the one given away) and quotes Kātyāyana and Laugākṣi cited in the Pravaramañjarī (p. 146) in support.

v4.c63.t2.49.4

The Dharmasindhu ¹³¹⁵ also says that when a boy of another gotra is adopted after his upanayana is performed in the family of birth or when only the upanayana is performed by the adoptive father, the adopted boy should repeat both gotras at the time of bowing at the feet of elders or in śrāddha and other rites; but when all the ceremonies including the cūḍā are performed by the adoptive father then the adopted boy has only one gotra (viz. that of the adopter).

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¹³⁰⁷ गोत्ररिक्थे जनयितुर्न हरेत् दत्रिमः क्वचित् । गोत्ररिक्थानुगः पिण्डो व्यपैति ददतः स्वधा ॥ मनु IX. 142. The Mit. on Yāj. II. 132 and V. Mayūkha p. 115 read 'न भजेद् दत्रिमः सुतः'. But this reading makes no change whatever in the meaning, since in ancient sūtras and smṛtis, the roots '*bhaj*' and '*hṛ*' and derivatives from them are used promiscuously in the same sense with regard to gotra and riktha. Vide the words gotra-bhājaḥ and riktha-bhājaḥ cited above (on p. 650) from Baud. Dh. S. II. 2. 36-37 and Gaut. 28. 30-31, the words 'rikthaṁ bhajeran' (in Gaut. 28. 19) and 'rikthabhāk' (in Gaut. 28. 26), Vas. 17. 84 (tayoralābhe rājā haret), Yāj. II. 132 (पिण्डदोंशहरश्चैषां) and II. 138 (दद्यादपहरेच्चांशं), विष्णुधर्मसूत्र 15. 40 (यश्चार्थहरः स पिण्डदायी). Even 'apaharet' which ordinarily means 'should steal or take away' is used by Yāj. II. 138 only in the sense of 'should take or claim'. Manu (IX. 153 and 154) employs the words 'haret' and 'ādadīyāt' in the same sense. Vide also रिक्थभाक् (in Manu IX. 155) and भजेरन् (in IX. 192). Therefore the learned Judges in *Dattatraya v. Govind* 40 Bom. 429 and in *Bai Kesarba v. Shivsangji* 34 Bom. L. R. 1332 (at pp. 1340-41) unnecessarily enter into a long discussion on 'haret' and 'bhajet' and the several translations of these words by Golapchandra Sarkar and others.

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¹³⁰⁸ Vide *Uma Shunker Moitro v. Kali Komul* 6 Cal. 256 (F. B.) at p. 260. Vide *Kali Komul v. Uma Shunkur* L. R. 10 I. A. 138, 149 for the acceptance by the P. C.

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¹³⁰⁹ Per Sir Asutosh Mukerji J. in *Birbhadra v. Kalpataru* 1 C. L. J. 388 at p. 400 (where Manu IX. 142 is cited in the original for this).

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¹³¹⁰ Vide *Raghuraj Chandra v. Subhadra* L. R. 55 I. A. 139, 148 followed in *Martand v. Narayan* I. L. R. 1939 Bom. 586 (F. B.).

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¹³¹¹ एतेन पुत्रस्वपादकक्रिययैव कृत्रिमस्य प्रतिग्रहीतृधने स्वत्वं तत्सगोत्रत्वं च भवति। दातृधने तु दानादेव पुत्रत्वनिवृत्तिद्वारा कृत्रिमस्य स्वत्वनिवृत्तिर्वर्तुगोत्रनिवृत्तिश्च भवतीत्युच्यते इति चन्द्रिकाकारः। दत्त. मी. pp. 163-164. The words पुत्रस्वपाद् ... निवृत्तिश्च भवति occur in the स्मृतिच. II. p. 289.

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¹³¹² तथा मनुः। गोत्ररिक्थे ... स्वधा। इति। एतेन दातृधने दानादेव पुत्रत्वनिवृत्तिद्वारा कृत्रिमस्य स्वत्वनिवृत्तिर्वर्तुगोत्रनिवृत्तिश्च भवतीत्युच्यते। तथा च गोत्रादिनिवृत्तेरेव दर्शनात् संस्कार्यास्त्वमृतान् पितेति स्मरणात् ग्रहणानन्तरंतेभागन्यभावा एव वृत्तकरच संस्काराः प्रतिग्रहीत्रा कार्या न पुनर्जन्मकृते कृतपूर्वा अपि निवर्तनीयाः। दत्त. च. pp. 23-24.

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