History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.1

v4.c63.t2.1

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.