History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.26
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.26
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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.