History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.26.2

v4.c63.t2.26.2

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).