History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v7.c93.631

v7.c93.631

Another circumstance that makes one entertain grave doubts about the universal validity and usefulness of the principles evolved by the PMS system must also be adverted to. The greatest students of Mīmāṁsā arrive at entirely different conclusions on many points. Some striking cases may be referred to here One of the most glaring of such cases is the interpretation of the short sūtra of Vasiṣṭha²²⁰⁶ (15. 5, na strī putraṁ dadyāt pratigṛhṇīyād vā anyatrānujñādbhartuḥ) ‘a woman should not give or take a son in adoption except with the assent of her husband.’ This has been interpreted in four different ways by works and authors about a Hindu widow’s power of adopting a son. The Dattakamīmāṁsā holds that no widow can adopt a son, because, the husband being already dead, no assent of his can be had at the time of adoption. Vācaspati, a Maithila writer, was of the same opinion on the further ground that, as Vasiṣṭha lays down that one about to take a son in adoption should, after having performed a *homa* in the middle of his house with the vyāhṛtis, take (in adoption) only him who is closely related and who is a kinsman and not remote (in habitation &c.) and, as women cannot perform a homa with Vedic mantras, all women including widows have no power to adopt. But in Bengal, it was held that the husband's assent need not be given at the time of adoption and that it may be given long before the actual adoption. In Madras it was held that the word husband in 'except with the assent of the husband' is only illustrative and that therefore the assent of the agnates of the father-in-law (husband's father) or of the husband's agnates would be enough to enable a widow to adopt. The Vyavahāramayūkha,²²⁰⁷ the Nirṇayasindhu and the Saṁskāra-kaustubha hold that the assent of the husband is required for a woman whose husband is living and that a widow can adopt provided she has not been forbidden to adopt by her husband. For a detailed presentation of these four views and the case law, vide H. of Dh. vol. III. pp. 668-674. The Hindu Adoption and Maintenance Act (No. 78 of 1956) has made far-reaching and radical changes in the Law of Hindu adoptions and section 4 of that Act overrules all texts, rules or interpretations of Hindu Law or customs and usages as part of that law, except in so far as they may have been expressly saved by that Act.