History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v7.c93.636
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v7.c93.636
- Language
- English
v7.c93.636.1
In passing it may be stated that to call the Act 'Hindu Adoptions Act' is a travesty and misnomer. It should have simply been called the Law of Adoptions in India and should have retained the ancient Hindu rules for Hindus as developed by the courts and should have been of a permissive character for all Indians like the English Statute (of 1926) on the adoption of children. The general Hindu law of adoption as developed in the authoritative smṛtis and commentaries and the case law did not contemplate the adoption of a daughter (except when she was made in ancient times a *putrikā*) and to allow the adoption of a daughter when a son was living throws to the winds the basic principle of the Hindu Law that a sonless man should adopt a male as a son for the sake of the presentation of piṇḍas and water (to the Manes) and for continuance of the family name (sections 7 and 11 of the Act).
v7.c93.636.2
The Act allows a woman (even if not married) to adopt to herself a son or daughter or both and under it a woman, if married, can adopt a daughter even if she has a son but a married woman cannot adopt a daughter if she has already a daughter or a son's daughter living at the time of adoption (sections 8 and 11) The Act does not recognize dvyāmuṣyāyaṇa adoptions which were recognized by Sanskrit texts and also by judicial decisions The ministers in the Government and their followers (most of the latter hardly know what Hindu Law was and has been) were carried away by enthusiasm for equality of rights for both men and women. As the Indian Union is now a welfare State and it is professed that laws are to be made keeping in view a socialistic pattern, Govt. should have disallowed adoptions altogether or at least put great curbs on indiscriminate adoptions. Instead, they extended the scope of adoption among Hindus by allowing a man to adopt a daughter even when he had a son or sons and by allowing even unmarried women to adopt a son or daughter or both This is against a socialistic pattern. If adoptions had been disallowed entirely or allowed within narrow limits cases of escheat to Government for want of heirs would have been many and to that extent a socialistic pattern would have been advanced. There is no evidence to show that women were keen on the right to adopt a son or daughter even when they were unmarried.
v7.c93.636.3
The first principle of introducing reforms in the existing law is that only strictly necessary changes should be put forward. Reformers and legislators should take to heart the advice of Mr. Aldous Huxley (in 'Ends and Means,' p. 30) that change as such is more or less distressing to most human beings, that man's conservatism is a fact in any historical situation and that social reformers should abstain from making unnecessary changes or changes that are of startling magnitude. Legislators should not forget that when they introduce far-reaching changes to lessen hardships, real or supposed, deemed to be caused by existing social conditions, they very often create new problems for the immediate future. To take a simple example, under the old Hindu Law all girls were to be married before puberty, though Manu (IX. 90) provided that a girl should wait for three years thereafter during which, her parents or relatives might select a bridegroom for her, but that if they failed to do so she may herself choose her partner. This was not a bad provision. People however went in for child marriages for girls and the problem of spinsters never arose. Then over thirty years ago came the Child Marriage Restraint Act (XIX of 1929) whereby the legally allowed marriageable age for girls was fixed at 14. By subsequent amendments and by the Hindu Marriage Act (25 of 1955) the lowest marriageable age for girls is now fixed at 15.
v7.c93.636.4
This Act of 1929 originally went a long way in raising the minimum age for the marriage of girls. Then, after the second world war, owing to economic stringency, and other factors, the tendency of marrying at a late age increased and now the problem of spinsters among Hindus has emerged and great difficulties about the marriages of grown-up women in middle class families are being experienced.