History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.26.1

v4.c63.t2.26.1

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’.