History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.49
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.49
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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.
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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.
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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).