06 - Chapter 2

CHAPTER: 2
UNCODIFIED HINDU LAW OF ADOPTION
2.1 Sonship
Son delivers the father from torment through the funeral obsequies, but Manu
declares that in the absence of the son the obsequies are to be performed by kinsmen in
regular gradation, on failure of all these, certain Brahmans must offer the cake and thus
he says the rites of obsequies cannot fail1. So the supreme necessity for a son seems to
be lost sight of, for every care is taken that the ancestor should be provided with the
funeral cake.2 In that a son was required by a Hindu because according to the various
Hindu sages only through a son, son‘s son and son‘s son‘s son his family can continue
in this world and he can attain the heaven in the next after his death. The Veda declares
endless are the world of those who have no son, there is no place for the man who is
destitute of male offspring.3
In the earliest time, putra was the name given to a son by Brahma himself,
because he delivers his father from the region of torment named ‗put‘ and the idea of a
departed spirit being refused admission to heaven, because he had left no male issue,
was forcibly impressed upon the national mind by the earlier sages. 4 The Sanskrit term
putra is equivalent with the English term ‗son‘ which clearly indicates the necessity of
him. Sons are called ‗putra‘ here ‗put‘ means hell and ‗tra‘ means saviour. So the putra
1 nd
Saharay H.K. , ‘Cowell Herbert’s Hindu Law’, 2 ed., (2013) R.Cambray & Co. Pvt. Ltd., p.188
2
Ibid
3
Agarwala R.K., ‘Hindu Law’, twenty-one Edi., (2003) , Central Law Agency, p. 142
4
Supra note 1 p .187
19
means who saves the father, grand-father and great grand-father from the hell. In other
words, putras are required to attain salvation. Manu emphasised the necessity of a son
thus: a son delivers his father from the hell called ‗PUT‘, therefore he was called PUT-
TRA (MANU IX 137 138)5
Yajnavalkya says: ―Because of continuity of the family in this world and the
attainment of heaven in the next are through son, sons‘ son and son‘s sons‘ son,
therefore women should be loved and protected.‘ 6
In the Vedic age a son was deemed so essential to the spiritual benefit of the soul
of his immediate ancestors that an extensive class of subsidiary sons was admitted to the
family, there is no place for a man destitute of male.7
Twelve classes of son have been enumerated by the Smriti-writers. Out of these
twelve classes of sons six of whom became the members of the father‘s family and heirs
of his estate, in other words they are kinsman as well as heir, the remaining six are not
regarded as the heir of the father but they are the kinsmen to him. On the basis of the
various classes or types of sons one of them is called the primary and the others
secondary or substitute sons, a secondary son was required for the continuance of the
family and to perform obsequies for a person who has no son. According to them, a
female could not perform obsequies. This purpose could not be served by a female.
Sons were plainly desirable in order to build up the sonless family against aggression
5
‘Punnamnonarakadyasmattrayate pitaram sutah tasmatputra iti proktoh syayameva svayambhuva’
(MANU SMRITI IX 138)
6
Supra note 3, p.143
7 rd
Sarma Basant Kumar, ‘Hindu Law’, 3 ed., (2011), Central Law Publication, p. 201
20
from enemies or the hazards of agriculture or the attacks of wild beasts.8 The persons
who were accorded the position of a son were the following-
i. Aurasa or legitimate son-means a son begotten by the father upon his
lawfully wedded wife. Legitimate son was desired both for spiritual
benefit as well as for the continuance of the family.
ii. Putrika Putra means a son of an adopted daughter who was given in
marriage to the bridegroom with a condition that the son born of her
would belong to her father.
iii. Kshetraja or son begotten on one‘s own wife by another man with the
consent of her husband for that purpose. The son so born becomes the
son of the woman‘s husband.
iv. Gudhaja or son secretly brought forth by the wife – the son secretly
conceived in the husband‘s house from a man other than the husband.
He became the son of woman‘s husband.
v. Kanina or son born to an unmarried female became the son of the
maternal grandfather, because a wife and maiden daughter belonged
respectively to the husband and father and a son born of them belong
to their owner in the same way as a calf produced by a cow, become
the property of the owner of the cow.9
8
J.Duncan M. Derrett, ‗Essay in Classical &Modern Hindu Law, Vol-III’, (1977)ed., Universal Book
Trader, p. 41
9
Supra note 7 p.202
21
vi. Punarbhava or son of a remarried woman. The punarbhava son is
now deemed aurasa or real legitimate son but he was disapproved by
the sages and he is enumerated among the secondary son.
vii. Dattakka or adopted son – a son given in adoption by his father or
mother, viz. that son whom his father or his mother with her
husband‘s assent gives a son to a man who accepts him as a son.
viii. Krita is a son who is received for the sake of male issue from the
hands of his father or mother after paying a price. In other words, he
purchased a son from the natural parent with the consideration.
ix. Kritrima or the son made- the son who being an orphan, is taken in
adoption with his own consent.
x. Svayamdatta- If a boy after losing his parents or being abandoned by
them, attaches himself to a man then this boy is called svayamdatt or
a son self given.
xi. Sahodhaja is the son born of a woman who was pregnant at the time
of marriage, but sohodhaja is the child of a man who is of equal class
with the bridegroom.
xii. Apaviddha is a son who is deserted by the father and mother not for
any fault but for inability to maintain him and taken for adoption.
All the above kinds of sons some of them have no blood relationship to their
father and some of them are the offspring of the mother‘s illicit relation with stranger.
Out of these twelve sons, the first six sons are the sons of the father and the rest of the
sons have a chance to give the funeral oblation on the failure of the first six types of
son.
22
Parasara recognises only four kinds of sons- aurasa, kshetraja, dattaka, kritima.10
According to a text of Vrihaspati, son of many descriptions who were made by ancient
saints cannot now be adopted by men, by reason of their deficiency of power.11 The
sages pronounced that in the Kali age, only the legitimate son and the son given are
recognised as sons; i.e. aurasa son born of a wife of equal class, legally married and
Dattaka son.12 With the advancement of the civilization the son by birth and the son by
adoption alone remain. The different kinds of sons as enumerated by different Smriti-
writers are shown in the list below. The list reflects the number of sons and their ranks
recognised by a particular Smriti-writer.
KINDS OF MANU GAUTAMA BAUDHA VASISTH YAJNAVA NARAD BRAH
SON YANA A LKYA A ASPAT
AURASA 1 1 1 1 1 1 1
PUTRIKA - 10 2 3 2 3 2
PUTRA
KSHETRA 2 2 3 2 3 2 3
JA
DATTAKA 3 3 4 8 7 9 4
10
Supra note 3, p.144
11
Supra note 1, p. 192
12
ibid
23
KRITRIM 4 4 5 - 9 11 7
GUDHAJA 5 5 6 6 4 6 12
APAVIDD 6 6 7 11 12 8 5
HA
KANINA 7 7 8 5 5 4 10
SAHODH 8 8 9 7 11 5 11
AJA
KRITA 9 12 10 9 8 10 6
PUNARBH 10 9 11 4 6 7 9
AVA
SVAYAM 11 11 12 10 10 12 -
DATTA
2.2 Adopted son & Dattaka son
The dattaka or adopted son was not peculiar to the early Vedic Hindu society.
The very idea of a father disposing of a son as a property by gift was not an agreeable
Vedic opinion.13
13
Gupta N.C., ‘Evaluation of Ancient Indian Law’ ,(1950),University of Calcutta, Tagore Law lecturep. 15
24
Adoption was prohibited in the Rig-Veda period. People wants only the son of
his own, i.e. aurasa son. They did not like to adopt the son of someone else.14 According
to the Rig-Veda an adopted son must be avoided as he is the wealth of another. Again, it
is stated that the child of another cannot be the offspring of one‘s. 15 In another part the
adopted son is mentioned as a stranger. The preference of aurasa son is clear from the
following Rig-Vedic verses—
―parisdyam hyaranasya rekno nityasya rayah patayah syama na seso agne
anyajatama styacetanasya ma patho vi dukush. Nahi grabhayaranah susevo anyodaryo
mannasa mantava vadha cidokh punarit sa etya ano vajyabhisaletu navyah‖
(Rigveda VII 4, 7------8)
Manu defines an adopted son as ―A son equal in caste and affectionately
disposed whom his mother and father give or both with water at a time of calamity, is
known as dattaka son‖.16
From the above table, Gautama, Baudhayana and Manu gave some importance
on adopted or dattaka son. They placed him in the first set of six sons. The first set of
the sons are the son of the father i.e. heir of the father and the second set of sons are
regarded as kinsman not heir. Adopted son was regarded as both kinsmen and heirs by
Gautama, Baudhayana and Manu. Vasistha placed him in eight, Narada in ninth and
Yajnavalkya in seventh. Apastamba does not recognise any secondary son. Yajnavalkya
14
Kane P.V., ‗History of Dharmasastra’ Vol-III, 2nd edi., (1946) , Bhandarkar Oriental Rerearch Institute,
Pune, p.656
15
‗na seso agne any ajatamasryacetanay‘ (Rig Veda,VIII 4.7)
16
25
gives him the seventh position. The Arthashastra of Kautilya and Narada placed him in
the ninth. In the text of Manu, the dattaka son was promoted to the third place. The
Dharma sutra of Gautama and Baudhayana gave him the same place as Manu does,
Asahaya the Commentator of Narada and Visvaruppa rank him as the third. The
difference between Manu, Yajnavalkya and Narada as regards the place assigned to the
adopted son was due to the difference in local custom as suggested in the
Viramitrodaya.17
From the above discussion it may be observed that the adopted son was assigned
low rank by the Smriti-writers. Apastamba has not recognised any secondary son; he
has expressly stated that the gift or acceptance of a son and the right to buy or sell a son
is not recognised.18. When a father or mother gives a son in distress then he is called an
adopted son, the term distress means the absence of male issue of the receiver.
Apastamba expressed, that can be distress of the giver and not the spiritual distress of
the taker for the want of male issues. This view was given by the Commentator by
Sarvajnanarayana.19
Some other writers like Balambhati and Katyayana also take the word apad to
mean distress of the natural father.20 So the word apad as used by the Manusmriti
means the need of the original parents and not of the adoptive parents owing to their
17 th
Mishra Ranganath, Mayne’s Hindu Law & Usage,16 edi., (2009), Bharat Law House, New Delhi, p.
471
18
Ibid
19
. Apadi svastasyaraksanasaklau -Commetatory of Sarvajnanarayana on Manu Smriti IX 168
20
. Kane P.V. & Patwardhan S.G. (1933), Vyavahara mayukha, Motilal Banarasi dass Delhi, p.105
26
absence of male issue. So no one can make a gift of son to another in normal situation,
when the person was in distress then only a person could give a child in adoption. So
the growth of the sentiment against the gift of a son is the main result of the low
position of the adopted son.
2.3 Forms of adoption
The Modern Hindu Law recognized only two kinds of son: aurasa and dattaka
son. There were other types of adoption which were recognized by custom:
Kritrima Form of Adoption: This form is prevalent in Mithila and the adjoining
districts.21 The main characteristics of kritrima form of adoption are:
a. In this form of adoption there is no restriction on the person to adopt the
child in respect of sex. Both the male as well as female can adopt a child. In
this form consent is also not required for adoption. A wife adopting a
kritrima son to her does not require the consent of any person not even that
of her husband.22 A female cannot adopt in the name of her husband. She
can adopt in her own name in this form of adoption.
b. In this form the son should be of same caste as the adopter. The consent of
adopted child is required but when the child is a minor then the consent of
the parent is necessary.
c. Kritrima son does not lose his claim to his right of inheritance in his own
family, his relation in the adoptive family are limited to contracting parties
21 th
. Desai,Sunderlal T, ‗Principle of Hindu Law’, 14 ed., (1978), Bombay N.M. Tripathi Pvt. Ltd., p. 571
22
. Supra note 20, p. 572
27
and not to other relation in the adoptive family, he does not take the name of
his adoptive father, but he succeeds to his property and perform his
obsequies.
d. In this form of adoption, performance of ceremonies is not required but there
must be proof of actual giving and taking the son in adoption. It must be an
actual contract between the parties present together, in person expressing to
one another their consent.23
Illatom Form of Adoption
This is a form prevalent in Andra Pradesh among the Reddi and Kammas. The
son-in-law is adopted in this form.24 In this form of adoption before taking the child in
adoption the adoptee must solemnised the marriage with the daughter of adopter. He
helps the adoptive family in agricultural operations lives in the adoptive family and for
these services he takes a share as an adopted son.25 In this form, performance of rites
and ceremonies are not required. In this form only a specific agreement is required. In
this form, two conditions are required- 1) the adoptee must marry the daughter of the
adopter and 2) there should be an agreement to give him a share. There must be an
agreement. The son-in-law does not become an adopted son in the real sense of
23
Supra note 1, p.217
24
. Subbarao. G.C. Venkat, ‗Family Law In India’, ed. (1982), C.Subbiah Chelly & Co.60 big street
triplican, p.145
25
. Venkayya vs. Satyanarayana AIR (1959) A.P. 360
28
adoption, he does not lose his right of inheritance in his natural family. He cannot claim
partition with the father-in-law unless there is an express agreement or custom.26
Dwyamushyayana Form of Adoption
In this form of adoption a son may be given in adoption on the condition that he
shall be the son of both the natural and the adoptive family. This is an exception to the
rule that adoption severs a son from his natural family. In this form of adoption such an
agreement and ceremony of giving and taking of the adoptive son must be proved.
In this form after the completion of adoption, the rights and obligations of the
natural father will not be terminated. The child after adoption would be treated as child
of two persons the natural father and the adoptive father. In Behari Lal vs. Shiva27 it
was held that an adoption in this form depends on the stipulation entered into at the time
of adoption between the natural father and adoptive father. In Malakappa vs. Mallap28
the Karnataka High Court has held that two brothers cannot adopt in this form of
adoption.
In this form of adoption, the child belongs to both families; he inherits in both
and performs the obsequies in both. The dvamushyana son being the son of two fathers,
it follows that he possesses all the rights and is equally subject to all the obligations of a
son in the two families. His natural mother and adoptive mother remains his heir and
may succeed to him in the absence of nearer heir. If such adoption takes place by
26
.Desai S.A., Mulla ‗Principle Hindu Law’,vol-I, 20th edi., (2007), Lexis Nexis Butterworths Wadhwa
Nagpur, p. 851
27
.AIR 1904 26 All 472
28
. Knt 32 S. 11 Cl.(V)
29
special agreement between the two fathers, the child is called Nitya
Dwyamashyayana.29 If the cause of the incomplete transfer be the antecedent
performance of the rites of tonsure, the child is called Anitya Dwyamashyayana.30
The dvamushyana form of adoption had long become obsolete in Madras on east
coast.31 So an adoption in that form is not valid now. This form was never reconized by
the Mitakshara. This form is recognized in parts of Bombay State and State of Uttar
Pradesh.32
Customary Form of Adoption
A customary adoption in Punjab is a mere appointment of an heir creating a
personal relationship between the adoptive father and the appointed heir.33 There is no
tie of kinship between the appointed heir and the collaterals of the adoptive father. 34 It
creates a personal relationship between the appointed heir and the appointer and unlike
adoption there is no transplantation of the appointed heir from his natural family to the
appointer‘s family.
29
William H., ‘Macnaghten’s Principles of Hindu Law’ , 4th edi., (1886) William Heinemann Ltd. London
p. 71
30
.supra note 1, p. 243
31
32
. ibid
33
34
. ibid
30
2.4 Early Texts on adoption
The whole Sanskrit law of adoption is evolved from a few texts and a
metaphor.35 The metaphor is that of Saunaka that the boy to be adopted must bear the
reflection of a son and the texts are those of Manu, Vasistha, Baudhayana, Saunaka and
Sakala. 36
A text of Manu defines an adopted son and states the effect of it in a few verses.
Manu says:
― mata pita va dadyatang yamaddhih putramapadi
Sadrisang pritis angyoktang sajneyodtrimal sutah‘
MANU IX 168
So according to Manu, a boy equal by caste, whom his father or mother
affectionately gives, confirming the gift with a libation of water, in times of distress to a
man as his son, must be considered as an adopted son37.
An adopted son shall never take the family name and the estate of the natural
family. The quotation shows that
a. the father and mother can only give a son in adoption,
b. the adoptee must be distress on account of being sonless and
c. the boy must be of the same caste.
35
36
. ibid
37
. Supra note 17, 476
31
The Dharma Sutras of Vasistha contains an important text bearing on the subject
of adoption. Vasistha has said that once should not give or accept an only son. Vasistha
again laid down the condition for a valid adoption by widow. He says a woman could
neither give nor receive a son except with her husband‘s permission.
Vasistha lays down that38-----
a) Man formed of uterine blood and virile seed proceeds from his mother and father as
an effect from its cause.
b) The father and mother have the power to give, sell or to abandon their son,
c) One cannot take the only son of another because he must remain to continue the line
of the ancestors.
d) A woman neither gives nor receives a son in adoption except with the consent of her
husband.
e) The male who desires to adopt a son must give his intention to the king, make burnt
offering in the middle of the house, reciting the Vyahritis and take the child as a son not
a remote kinsman, just the nearest among his relatives.39
The same effect is given in the Grihayasutra of Baudhayana.40
According to the text of Saunaka, a person can take a son in adopion who is
within the sapinda of the adoptive father, by performing proper rites and ceremonies
which includes
38 th
. Pathak D., ‘Hindu Law & Its Constitutional Aspects’, 6 edi., (2001) Lawyer’s Book Stall, p. 153
39
. Cited by Lord Hobhouse in Sri Balusu‘s Case 26 IA 113
40
32
(a) Recitation of prayer by the natural and adoptive at the time of taking the
child.
(b) Performance of homam and burnt sacrifice.
Sakala says, ―Let one of a regenerate tribe destitute of male issue on that account
adopt as a son the offspring of a sapinda relation particularly; or also next to him, one
born in the same general family. If such exist not let him adopt one born in another
family: except a daughter‘s son and a sister‘s son and the son of the mother‘s sister‖.41
Besides these texts a metaphor of Saunaka also served to elaborate the law on
the subject of adoption. He says that the adopted son should be ―putracchayavaha‘ i.e.
bear the reflection of a son. This metaphor reflects the qualification of a person to adopt
a son. Nandapandit again ruled that a person cannot adopt his brother, uncle, daughter‘s
son or sister‘s son.
Thus the theory underlying adoption, the person who can be adopted, the scope
of a widow‘s power to adopt have been traced to the texts of Manu and Vasistha and the
metaphor of Saunaka. In this way the entire law of adoption developed from the texts of
Manu and Vasistha and the metaphor of Saunaka.42 From these texts and commentaries
the entire Hindu Law of adoption has been developed.
41
42
. Supra note 20, P. 150
33
2.5 Objectives of adoption
The objects of adoption are of twofolds i.e. to secure the performance of the
funeral rites of the person to whom the adoption is made and to preserve the
continuance of his lineage.43
According to Manu, ―by a sonless person, should any descriptions of a son be
anxiously made for the sake of funeral oblation, libations of water and obsequies rites as
well as for the celebrity of name‖.44
Vasistha also expressed, ―if the father sees the face of the living son on birth, he
transfers the debt to the son and attain immortality. It has been revealed that endless are
the heavenly regions for those having male issue but there is not heavenly region for a
sonless son‖.45
Atri mentioned the purpose of adoption of a child is to be the securing of i)
pindodaka kriya i.e. offering of pindas, oblations of food and udaka i.e. libations of
water by the adopted son to the adopter and his manes ; ii) nama samkirtana:
perpetuation of the name of the adopter by the continuance of his line. 46
So the above texts show the importance of adopted son in the life of a childless
person. The spiritual and secular need of a childless person is the prime object of the
institution of adoption among Hindus.47 The main object of ancient Hindu Law of
adoption is religious. According to the traditional Hindu principle, adoption takes place
43 th
. Gour Hari Singh, ‘The Hindu Code’, Vol-IV , 5 Ed,(1978), Law Publisher Sarder Patel Marg, p. 764
44 nd
. Srivastava K.C., ‘Hindu Law’, 2 ed., (1981), Allahabad law Agency, P.203
45
. ibid
46
47
. Supra note 17, P. 203
34
in order to provide a male Hindu with an heir who can perform his shraddha ceremony
after his death.48 According to Dattaka Mimansa, a man should adopt a son for the sake
of the funeral cake, water and the solemn rites and for the celebrity of his name.49
According to Dattaka Mimansa and Dattaka Chandrika, the main purposes of adoption
are religious and secular. It is secular because in adoption the parent gives the son in gift
to another, there is a transfer of a son from the natural father to the person who accepts
the gift of the son. A daughter given in marriage is called kanyadan and a son given in
adoption is putradan, stand in the respect on the same footing, both are gifts for religion
and secular motive.50
But in other respect i.e. religious we find that the giving and taking of a son in
adoption is complete only by the performance of the religious ceremonies. A Hindu can
adopt a son without performing the religious ceremonies to make the son a slave to the
latter, but to create filial relationship between the adopted son and the adoptive family
member the ceremonies must be performed as prescribed by the Shastras.
The object of adoption is religious, but the object of the giver and of the adoptee
is far from religious. The religious motive for adoption never excluded the secular
motive.51 In the ceremonial for adoption by Baudhayana the adopter received the child
with the words: ―i take thee for fulfilment of the religious duties, i take thee to continue
48
.. Derrett J. D.M., ‗A Critique in Modern Hindu Law‘, (1970) N.M. Tripathy Pri.Ltd Bombay, p.123
49
. Supra note 3 p. 145
50
51
35
the line of my ancestors‖.52 In adoption mere gift and acceptance are required, which
are secular acts of the adopted parent and the adoptive child.
In Mithila, a Hindu widow was prohibited to perform religious duty and she was
not entitled to make an adoption which shows that the adoption is treated as secular
institution though it may carry with it the religious obligation on the part of the son
adopted. The adoption of only son can never be justified on religious ground.
The power of a widow to adopt was terminated by the presence of a grandson or
son‘s widow. This view was expressed by the Privy Council in Amarendra Man Singh
vs. Sanatan Singh.53 In this case the court observed that the adoption under the
traditional Hindu Law was a spiritual and religious act and the power of a widow to
adopt for her deceased husband was a limited power.
2.6 Conditions of a valid Adoption
According to the Shastrik Hindu Law the following conditions are required for a
valid adoption
2.6.1 Capacity of an adopter
During the Smriti period, a Hindu male or a widow on behalf of her husband and
who is of sound mind could adopt a son. But a female Hindu could not adopt a son to
any other male. Thus a mother could not adopt to her son nor a sister to her brother.54
Thus a female Hindu during the survival of her husband and an unmarried woman also
52
. ibid
53
.(1933)60 IA 242:12 Pat 642
54
. Supra note 26, p779
36
had no right to adopt a son, because the purpose of adoption is to ensure spiritual benefit
for a man after his death by offering oblation. Woman having no spiritual needs to be
satisfied, was not allow adopting a son for her. A wife could adopt only with the express
authority of her husband, but she could entitle the right to adopt a child only after the
death of her husband under the authority of her deceased husband. Such adoption could
be made by a wife to her husband, not in her own name. If the husband had made an
adoption during his life time his wife would have joined him. The wife in such a case is
regarded as pratigritrimata (adopted mother). Hindu Law does not recognise the right of
an unmarried woman to take a child in adoption.
Adoption by a male Hindu
A Hindu male had an absolute right to adopt a son under the ancient Hindu Law.
He may be a bachelor or a widower but there is a proviso that he must not have a son,
grand-son or great-grand-son, natural or adopted living at the time of adoption. The
husband‘s power to adopt does not depend on the consent of his wife. He can by his
mere act of adoption affiliate a child both to himself and his wife.
55
The High Court of Bombay in Bharmappa vs. Ujjangauda has held that a
Hindu, who has a son, grandson or great grandson living at the time cannot adopt even
if the son, grandson, great-grandson is disqualified from inheriting any property.56
But in certain circumstances a man having son or grand-son can adopt when he
has –
a. an illegitimate son,
55
. (1922) 46 Bom. 455,65 IC 216, AIR 1922 Bom 173
56
37
b. a son who has married under the Special Marriage Act,
c. a son who becomes outcast or ceased to be a Hindu religion,
d. a son who renounced the world,
e. a son who is missing,
f. a son who had not been heard of for seven years.
A man having a disqualified son or a son who is patita on account of heinous
offence or change of religion can adopt and as long as a man has no son capable of
inheriting his property, there is no reason why he should not be able to adopt.57Again
where a son is incapable to confer spiritual benefit on the father the later is competent to
make an adoption.58 If a son is permanently incapable of performing religious rites by
reason of congenital blindness, deafness, dumbness, impotency, lameness, virulent
leprosy, insanity or form any other reason which involves incapacity to inherit, he may
be treated for this purpose as non-existence.59
An outcaste son is not disentitled to any legal right by loss of caste according to
the Caste Disabilities Removal Act XXI of 1850, but he cannot perform the religious
ceremony and offer oblation to his ancestor, for this reason the father of an only son
who is disqualified by outcaste son, adopt a son to offered oblation by his adopted son.60
According to ancient Hindu Law a male Hindu could adopt a son if he----
a. is of sound mind.
b. is a minor but attained the age of discretion.
c. is not blind or suffering from leprosy which is not of a virulent form.

57
Ghose Jagendra Chunder, ‘The Principle of Hindu Law’, vol I, 3rd Edi., (1917) , S.c. auddy and Company
p.669
58 rd
West and Buhler’s ‘Hindu Law’, vol- I , 3 edi. P.11
59 nd
Trevalyan Ernest John, ‘Hindu Family Law’, 2 edi., (1908), W. Thacker and Co., London, p.104
60
38
According to Hindu Law, a minor Hindu can adopt or authorised his wife to
adopt a son but the proviso is that he must attained the age of discretion. There is no fix
age for discretion, under the Mitakshara law the age of discretion is 16 years and under
the Dayabhaga the age of discretion is 15 years. The Indian Majority Act does not
apply in case of uncodified law of adoption. In Amarendra Vs. Sanatan 61 the Privy
Council has held that a person who is a minor under the Indian Majority Act can adopt
or authorised his widow to adopt a son.
Again the Privy Council in Jamoona Vs. Bamasoondari62 has stated that the
age of fifteen or sixteen was, according to the Law prevalent in Bengal, to be regarded
as the age of discretion. Dayabhaga School fixed fifteen years for the age of majority.
When an adoption is made by a Hindu who has not attained the age of discretion, it
cannot be subsequently ratified.
A Hindu male could not adopt a son
a. where he has a son, grandson, great grand son
b. Where a person disqualified from inheriting due to impotency, lunacy,
idiocy, leprosy, blindness but his aurasa son is entitled to his share.
Where a person is disqualified from inheriting due to his impotency, idiocy,
leprosy, blindness then only his aurasa son is entitled to his share, could not adopt a son
of another. Again the existence of a legitimate issue and offspring of the wife prohibited
61
Supra note 53, p. 642, 660-663
62
1876 3IA 72, 1 Cal 289
39
the Hindu male to adopt a son of another. The Dayabhaga expressed that a male Hindu
is disqualified for having a aurasa and Kshetraja.
Under the ancient Hindu Law a son adopted by a disqualified person has no
right to the estate of his paternal grandfather but to maintenance only. So a son adopted
by a disqualified person cannot have the equal status with that of the dattaka son.
Therefore an adoption made by a disqualified person is invalid.63 But these views
relating to adoption by disqualified person are overlooked by the High Court of various
States.
According to Hindu Law when a disqualified person adopts a child of another
then the adoption is invalid but if the disqualification can be removed by the Hindu
Inheritance (Removal of Disabilities) Act of 1928, the adoption will be valid one.64
In Seshamma Vs. Padmanabha Rao65 it has been held by the Madras High Court
that an adoption by a person who is of unsound mind is invalid.
Adoption by a widow
According to the ancient Hindu Law a female had no right to adopt a son. A
wife could not adopt during the lifetime of husband. The primary right of adoption was
vested in the husband since the son was adopted for the due perpetuation of his lineage
and also to secure for the adoptive father and his ancestors the spiritual blessing which
only an heir male can confer. The only female who was entitled to adopt to a person on
63
. Supra note 17, p.479
64
65
. 1990 Mad. 660
40
his death during the ancient period was his widow. As stated in Collector of Madras vs.
Moottoo Ramalinga66 the law of adoption by a window is different in different states.67
Jains are regarded as Hindu, they have also the same right as the right to adopt a
child of another. In absence of any custom, Jains are regulated by the provisions of
Hindu Law. But amongst the Jains a custom enabling a widow to adopt a son to her
husband without express authority has been recognized by the judicial decisions. 68 In
all parts of India except the state Madras and Punjab the Jains observed the custom by
which a widow is entitled to adopt a son to her husband without his authority, but this
rule is well known by judicial decision.69
The law relating to adoption of a son by a widow is different in different States
in India70:
I. In Madras , a widow may adopt without the consent of her husband, if
she was separate from her husband at the time of his death but she has to
obtain the Consent of her husband‘s sapindas and undivided coparceners
II. In Bengal, Banaras and Madras, a widow may adopt only with the
authority which may be express or implied of her husband during his life
time.
66
(1868) I MIA 397
67
.Supra note 8
68
69
. Premraj vs. Mst. Chand Kanwar AIR 1947 P.C.60:74 I.A.254(P.C.)
70
41
III. In Mithila, a widow can not adopt even with the authority of her husband
because a woman cannot perform the homam with Vedic mantras and
cannot repeat the Vedic mantras about acceptance of the son.
IV. In Bombay the Hindu female may adopt without the authority of her
husband.
The rule of adopt a son by a female was based on the text of Vasistha
‗Nashtri putrang dadyat pratigrihnaeyatdva anyatranujnanant bhartuh‘
VASISTHA Ch.XV
(nor let a woman give or accept a son unless with the assent of her Lord)
A woman could neither give nor accept a son without the permission of her
husband. A Hindu husband could adopt without the assent of his wife but the wife could
not adopt without the assent of her husband, but only after the death of her husband a
wife can adopt a son.
The statement of Vasistha deals with the adoption made by the wife during the
life time of her husband he does not discussed about the widow‘s right to adopt a child.
The husband‘s authority is always to be presumed, unless he has prohibited his widow
from adopting expressly. The authority to adopt must be strictly followed by his wife. If
the husband asked to adopt only a boy from his own family of the same gotra, adoption
of any other son was regarded as void.
If the period of adoption within which she could adopt was specified then she
could adopt only within the specified period. But a widow who was authorised to adopt
may or may not adopt a son.
42
It was held by the Bombay High Court, in Patel Vandravan vs. Patel Manilal71
that every Hindu who is of sound mind, who has attained the age of discretion even a
minor also authorised his wife to adopt a child to him after his death except in Mithila
according to which a widow cannot adopt even with the authority of her husband.
Thus a widow could adopt only within the strict authority of her husband. The
widow who is minor could adopt subject to the rule that she must attained the age of
discretion. An unchaste widow could not adopt. The authority to adopt a child could be
terminated after the remarriage of the wife. After remarriage the woman could not adopt
a son on the authority of her first deceased husband.
In Madras and Bombay State, a widow could adopt a son even without the
authority of her husband. Where the husband and wife were living separately then also
she could not adopt.72 If her husband was separated at the time of his death, she must
obtain the consent of her father-in-law. If the father-in-law is dead she must obtain the
consent of her husband‘s sapindas.73
In Bombay, a widow may adopt without the authority of her husband. But she
could not adopt if the husband prohibited adopting either expressly or impliedly. She
could not dispute an adoption made by her husband nor can she adopt during the
lifetime of a son adopted by her husband, though the validity of the adoption by her
71
. (1891)15Bom 565
72
. Collector of Madura vs. Mottoo Ramalinga (1868) I MIA 397
73
. Supra note17, p. 790
43
husband is doubtful.74 The power of a widow to adopt after her husband‘s death is
subject only to such restrictions, if any as he may have imposed upon her.75
The authority to adopt must be strictly followed by the widow and she could
neither varied nor extended. There is no time limit during which the widow may adopt
upon the authority given to her. The widow cannot adopt the son under the authority of
her husband during the life time of her husband. Again she cannot adopt if a son, grand-
son, great grand-son natural or adopted of her husband are alive. Like a male, a widow
may be a minor and is of sound mind but she must attain the age of discretion to adopt a
son under the authority to adopt of her husband.
An oral authority to adopt by husband has to be strictly proved and also if the
authority is conditional the condition must be strictly followed. If the authority is in
written form in the nature of will, then registration is optional otherwise such authority
must bear stamp of Rs.10 and be registered. Such writing is known as anumati patra and
it recites the status of the husband in the family and also mentions that he is without
male issue. The boy to be adopted may also be named. However the wife has the
discretion to choice the boy and also the time of adoption.
A minor widow may adopt a son in the same circumstances as a son is adopted
by an adult, provided that she must attained the age of discretion. But she must not be a
cheat as she is incapable of performing the religious ceremonies. 76 A widow could not
74
. Bhau vs. Narasogouda (1922) 46 Bom 400, 64 IC 614 L, AIR 1922 Bom 300
75
. Supra note 17, p 795
76
. Sayamalal vs. Saudamini (1870)4 Beng LR 362
44
adopt after her remarriage, but she made adopt several sons in successive one after the
death of another.
A widow cannot adopt a son to herself, she can adopt to her husband only. In
Narendra vs. Dina Nath77 it was held that an adoption made by a widow to herself is
invalid and confers no legal rights upon the person adopted. The authority to adopt can
be given to the widow alone not to any other person separately or jointly with his
widow. Where the authority to adopt is given to the widow jointly with another person
then the authority is void. The widow cannot delegate her authority to adopt to any
other. A husband may direct his wife to adopt with the consent of a specified person or
direct not to adopt without the consent of a particular person. The power of adoption
which the widow has is the delegated adoption and when she adopts to her husband she
is merely performing an act which her deceased husband should have done.78
An agreement by a widow with any other person not to adopt a son to her
husband, or which imposes restriction on her power to adopt is void as opposed to
public policy.79Even an agreement restricting the widow‘s power to adopt except with
the consent of a coparcenar is void. There is no distinction between an absolute
restriction and partial restriction in case of adoption.80
77
. 36 Cal 824
78
. AIR 1956 (Journal Section) ‗Widow‘s power of adoption‘ by Ved Prakesh Elhence, p.57
79
80
45
The authority to adopt may be express or implied, verbal or in writing but if it is
in writing in nature, it must be stamped and registered.81 A will giving authority to adopt
required to be writing and executed and attested as required by the Indian Succession
Act,1925 under Section 57 and 6382. It was stated in Viyayaratnam vs. Sudarsana83 that
a Will by a minor, who is incompetent to make a Will, containing an authority to adopt
a son is valid as an authority to adopt if it is registered. An authority to adopt given in a
will disposing of property is not revoked by subsequent will containing a disposition of
81
82
. Section 57 of the Indian Succession Act. Application of certain provisions of Part to a class
of wills made by Hindus, etc.- the provision of this Part which are set out in Schedule III shall,
subject to the restrictions and modifications specified therein, apply-
(a)to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the
first day of September 1870, within the territories which at the said date were subject to the
Lieutenant-Governor of Bengal or within the local limits of the ordinary original jurisdiction of
the High Court of Judicature at Madras and Bombay; and
(b) to all such wills and codicils made outside those territories and limits so far as
relates to immovable property situate within those territories and limits.
(c) to all will and codicils made by any Hindu, Buddhist, Sikh or Jains on and after the
first day of January 1927, to which those provisions are not applied by clause (a) and (b).
Section 63 of the Indian Succession Act. Execution of unprivileged wills- Every
testator, not being a soldier employed in an expedition or engaged in actual welfare or a mariner
at sea shall execute his will according to the following rules—
(a)The testator shall sign or shall affix his mark to the will or it shall signed by some
other person in his presence and by his direction.
(b) the signature or mark of the testator, or the signature of the person signing for him,
shall be so placed that it shall appear that it was intended thereby to give effect to the writing as
a will.
83
. (1925) 52 IA 3051
46
property inconsistent with the disposition in the prior will, when prior will is not
expressly revoked.84.
Widow‘s right to adopt a child under the authority of her husband may be
conditional, but the condition must not be illegal. An authority to a widow to adopt in
case of disagreement between herself and a surviving son is invalid because a Hindu
cannot adopt while he has a son living. But an authority to adopt in case of the death of
the natural son is valid.85
The authority must be followed, it can neither be varied nor extended. The
widow has a duty to obey the direction of her husband as to the direction in which she
should exercise the power of adoption to him.86 Where the husband gives direction to
adopt a son from a particular family or of his gotra then he cannot adopt any other son,
otherwise the adoption will be invalid.87
A widow is not legally bound by the direction of her husband to adopt a son , it
is her discretion to adopt or not to adopt even if she has been directed by her husband to
do so.
If there are more than one widows and the authority is given to only one of them
then the widow to whom the authority is given alone can adopt. But if the authority is
84
85
. Vellanki vs. Venkata Rama (1976) 1 Mad 174, 4 IA 1
86
87
. Sundarasivudu vs. Adinarayana (1940) Mad. 233, 189 IC 303, AIR 1939 Mad 909
47
given severally the senior most widow had the superior right to adopt, the junior widow
also adopt if it is not refused by the senior most widow. A widow cannot adopt during
the life time of adopted son of her co-widow.
Where there are several widows and if the express authority is given to one of
the widow then she can adopt without the consent of the others. But she can also adopt
only when if the authority is expressly given to her or if the senior widow deny to adopt.
On the death of one widow the surviving widow can adopt.
In Souther India, a widow, who has no authority to adopt a son may adopt with
the assent of his sapindas. The doctrine of the consent of the sapinda was first
enunciated by the Privy Council in Collector of Madura vs. Mottoo Ramalinga88
popularly known as the Ramnad case. If the surviving father of the husband is the head
of the whole family he can give assent to his daughter-in-law to adopt. When the
surviving coparcener of the joint family is insane or if there is no undivided sapinda
having capacity to give assent to the widow, she can adopt with the assent of the divided
sapindas. In Ramnad case the Judicial Committee observed that the assent of the
sapinda is necessary because of the supposed incapacity of the widow for independent
action. In case of the absence of agnate reversionars the widow can adopt with the
assent of the nearer cognate reversioner.
In Tahsil Naidu vs. Kulla Naidu89 the Supreme Court has held that a widow who
is the nearer sapinda is not capable to give the consent to validate the adoption. In such
case the consent must be given only by a nearer male sapinda.
88
. (1868)12 MIA 397, 441-442
89
. AIR1970 SC 1673
48
Only in the states of Bombay and Madras, the widow can adopt a son without
the authority of her husband. In Madras, the widow can adopt a son without the
authority of her husband when there is no express or implied prohibition to adopt. If the
wife was separated from her husband at the time of his death then the widow can adopt
only with the consent of her father-in-law, and if he is dead then he must take the
consent of the brothers or other coparcenar of her husband provided that they must be of
sound mind, attained the age of majority and does not convert to any other religion.
Where the husband dies leaving behind undivided coparcenar and divided coparcenar
then the widow to adopt the son must take the consent of the undivided coparcenar.
In Bombay also the widow can adopt without the consent of her husband if there
is no express or implied prohibition from the husband to adopt. If the husband was
separated from the wife at the time of his death then husband‘s sapindas consent is not
required to adopt a son.
Some other rules relating to the capacity of a widow
The widow had no such power as exercised by her husband in case of adoption
of a son. She could adopt a son only when the power to adopt a child delegated to her
by husband. She could adopt only with the authority of her husband, in the absence of
the authority of her husband she could adopt with the assent of the nearer sapindas.
Again the wife could not adopt if she had a son, grand-son or great grand-son or son‘s
widow.
A minor widow could adopt a son under the authority of her husband in the
same circumstances as an adult widow provided that she has attained the age of
discretion and is able to form an independent judgment in selecting the boy to be
49
adopted. According to Bengal writers the age of discretion is reached at the beginning
of the sixteenth years and according to Banaras writers, at the end of the sixteenth years.
An unchaste widow living concubine was incompetent to receive a son in
adoption to her deceased husband as she is incapable of performing the religious
ceremonies. An unchaste widow of sudra could adopt because there was no
performance of ceremonies for adoption among them. It has been held by the Bombay
High Court in Pertab Bawaji vs. Bai Suraj90 that even amongst regenerate classes, a
widow though unchaste can make a valid adoption, provided she performs herself the
physical act of taking the boy in adoption . An unchaste widow of the regenerate classes
can adopt when the adoptive father and adopted son are of the same gotra, as here also
performance of religious ceremonies is required.
A widow after remarriage could not adopt a son to her first husband. On her
remarriage she lost her status as her husbands‘ widow for all purpose and the spiritual or
temporal ties with the family of first husband terminated after her remarriage.
A widow could adopt several sons in succession one after the death of another.
In Bombay, she can adopt a son on the death of a son previously adopted unless there is
a specific limitation placed on her power to adopt.91
The motive of a widow to adopt a son is not material for the validity of adoption.
If where the consent of a sapinda has been obtained, the motive of the adopting widow
is relevant. The legal test for the validity of adoption by a widow with the consent of
sapindas is whether the act was bona fide in the performance of a religious duty. In
90
. 1946 Bom 123 AIR 33
91
50
Sitabai vs. Govindrao92 it was decided by the Bombay High Court that in as much as the
adoption procured for her husband all the religious benefit which he could have desired
any discussion of her motive is irrelevant. Again the Madras High Court has held in
Kanakaratnam vs. Narasimha Rao93 that when a widow has received valid authority to
adopt her motive in making the adoption should be ignored.
2.6.2 Capacity of an adoptee
Under the uncodified Hindu Law, only father and mother could give a son in
adoption. Manu says ‗He whom his father and mother with her husband‘s consent gives
to another, is considered as a son given.‘94Vashista says, ‗Man produced from virile
seed and uterine blood proceeds from his father and mother, as an effect from its cause.
Therefore his father and mother have power to give away, sell or abandoned him. But
no one should give or receive an only son; for he represents the continuity of the
forefathers. Nor should a woman either give or receive a son without her husband‘s
permission‘.95
Vajnavalkya says, ‗He whom his father or mother gives in adoption shall be
considered as a son given.‘96
92
. (1927)51 Bom 217,200
93
. ILR (1942) Mad 173(FB)
94
95
. Mandlik Vishwanath Narayan, ‗Vyavahara Mayukha or Hindu Law’, 1st edi(1980), Asian Publication
Services, New Delhi, India, (1982), p. 463
96
. ibid
51
The Mitakshara also expressed that the father and mother (with the consent of
her husband) could give a child in adoption. But the mother with the consent of her
husband could give the son in adoption.
Under the old Hindu Law, the primary right to give in adoption was that of the
father, the child‘ mother‘s consent was not necessary for the exercise of such a right and
her dissent could be ignored.97 So we find that under the ancient Hindu Law the father
had the absolute right to give the child in adoption, the consent of his wife was not
required. He could give a son in adoption even without the consent of his wife. The
conversation to another religion like Muslim was not a bar to the right to give his son in
adoption to a Hindu.
The giving a child in adoption was exclusively given to his parents, other than
the parents, the guardian or any other person could not give a son in adoption. The
parents could not delegate the power to give the son in adoption but the physical act of
giving the child in adoption may be delegate to another. Since the physical act of giving
a son in adoption is accompanied by religious ceremonies, such act must be delegated to
another person who is a Hindu by the person who has converted to any other religion.98
Conversion is not a bar to give a son in adoption for the father. After conversion to
another religion the father could give the son in adoption, he delegated the performance
of the ceremony of giving the son to another person who is a Hindu.
The mother could not give the child in adoption without the permission of her
father during his life time. But she could give during the life time of the father if the
father becomes incapable to give consent. Again she could give after his death, provided
97 nd
Gandhi B.M., ‘Hindu Law’, 2 edi. (2003), pp. 349-350
98
. Shamsing vs. Santabai (1901)25 Bom 551
52
she has not been prohibited by the husband. The right to give the child in adoption was
given only to the natural father and mother, not to the adoptive father and mother. The
father and mother must be of sound mind and must attain the age of discretion.
If both the parents are dead no one else not even the paternal grandfather or the
step mother or the brother could give a child in adoption. A widow on her remarriage
had no right to give in adoption her son by her first husband. The Bombay High Court
has held that a widow after remarriage could not give a son in adoption unless she has
been expressly authorised by him to do so.99 But again in another case the same High
Court has held that remarriage did not deprived a female to give a son.100
So here we find that in case of a male Hindu after conversion he had not lost his
right to give the child in adoption to a Hindu even without the consent of his wife. But
in case of a Hindu widow after remarriage, she had lost her right to give the child in
adoption. This is also one of the provisions relating to inequality between male and
female regarding the law of adoption.
2.6.3 The person adopted is lawfully capable of being taken in adoption
According to the Dattaka Mimamsa and the Dattaka Chandrika , in the first
place, the nearest male sapinda should be selected , if suitable in other respect , and, if
possible , a brother‘s son, as he is already , in contemplation of law , a son to his uncle
is lawfully capable of being taken in adoption.101If no such near sapinda is available,
then one who is more remote, or in default of any such, then one who follows the same
99
. Panchappa vs. Sanganbasawa (1900) 24 Bom 89
100
. Putabai vs. Mahadu(1909)33 Bom 107,IIC 657
101
Supra note 17, p.514
53
spiritual guide or in the case of Sudras, any member of the caste is capable of being
taken in adoption.102 A Hindu could lawfully take a child in adoption if the child is —
i. a Hindu
ii. a male child
iii. belong to the same caste as his adopting father, but same sub-division is
not necessary
iv. not be a deaf and dumb, orphan, only son and eldest son
v. not a married person
vi. a boy , whose mother the adopting father could not have legally married.
According to the ancient Hindu Law, only the male Hindu could be adopted. A
daughter could not be adopted as the adoption of the daughter did not confer any
spiritual benefit on the adopter. According to Vashistha, an only son could not be
given or taken in adoption because the lineage of the father will continue through the
only son.
The adopted son must belong to the same caste as adopting father. Thus a
Brahman could not adopt a Kshatriya, a Vaisya or a Sudra, but he may not be the same
sub-caste and vice versa. Saunakka prohibits adopting an outside caste. 103 Mitakshara
recognised the adoption of a son of the same caste. The adoption of a person belonging
to different caste was invalid.
According to Vasishtha the only child could not be given in adoption because a
son is required to continue the lineage of his father.104 Saunaka also asserted the same.
102
. ibid
103
104
Vasishtha XV3,4
54
The Mitakshara expressed that only son is neither given nor accepted by any one. Again
Vasistha says that as the son is to continue the line of their ancestors, so an only son
should never be given or taken.
―Na tvekam putram dadyat pratigrhniyadva : SA hi santanaya purvesam ―
Vasistha Dharmasutra, XV 3, 4
Adoption of the eldest son is bar by some writers of Hindu Law. But this is
clearly rejected by the Bombay High Court and held in Jamnabhai vs. Raichand105 that
an adoption of an eldest son is valid.
According to the ancient Hindu Law, two persons cannot adopt the same person
even though the two people are brothers. Such adoption is invalid. The simultaneous
adoption of two or more person is invalid.
An adoption can be made only by the natural father or mother. Under Hindu
Law, a childless person after adopting a son cannot give the child in adoption to another
person even if the later be the natural father of the adopted son.
The Smrities and Commentaries did not express about the restriction to the age
limit of the child. The only provision provided by Dattaka Chandrika is that the boy
must be adopted before the Upanayana ceremony of the boy is being performed, in case
of Sudras before marriage. In all the provinces except Bombay, in case of three
regenerate classes the adoption is valid if made before Upanayanam and in case of
Sudra before marriage.
In Western India, a man may adopt a child of any age, he may be married or
have children whether he belongs to the same or another gotra106. On an adoption of
105
. (1883)7 Bom 225
55
married man having children, his son does not cease to be the member of his natural
family, they still entitled the interest in the joint family property but the adopted married
male loses his gotra. In Punjab a married man having children could adopt if the custom
permits. A customary adoption in Punjab is ordinarily no more than a mere appointment
of an heir creating a personal relationship between the adoptive father and the adopted
heir only. Amongst the Jain a married man can be adopted.
For a valid adoption the son must be given by the father and mother only, so the
adoption of an orphan is invalid, except by custom. A Hindu according to ancient
Hindu Law cannot adopt an orphan child, because a son can be given in adoption only
by his father or mother, which cannot be done in case of an orphan. An adoption of an
orphan may by valid only it is recognised by custom. The adoption of an orphan where
it is valid by custom cannot be held to revive the obsolete institution of svayamdatta or
the kritrima except in Mithila. A stranger could be adopted though there are near
relations.107
In Hira vs. Radha108 the Bombay High Court has held that an adoption of a
daughter by a naikin or dancing girl is invalid notwithstanding a custom to the contrary,
such custom being regarded as immoral.109 But the Madras High Court in Venku vs.
Mahalinga110 gave a reverse decision on this topic, according to the decision in the case,
106
107
108
. (1913)37 Bom 116,17 IC 834
109
. Supra note 25 p. 822
110
. (1888)11 Mad 393
56
adoption of daughter by naikin or dancing girl is valid, provided the adoption is not
made to disposing of the girl for the purposes of prostitution.
From the above we observed that the law relating to adoption during ancient was
not for the welfare of child as it excludes orphan, illegitimate child from the list of the
capable children to be adopted.
2.6.4 Ceremonies for adoption
Regarding the essential ceremonies for adoption we can mention the following
texts :111 Vasistha –― He who desires to adopt a son, shall assemble his kinsmen,
announce his intention to the king, make burnt offering in the middle of the house,
reciting the Vyahriti and take as a son a non-remote kinsmen and visit the nearest
among relatives‘
Dattaka Mimansa—‗ The filial relation of these five son proceeds from adoption
only with observance of the form of either Vasistha or Saunaka not otherwise‘112
Baudhayana---‗ One should go to the giver of the child and ask him, saying give
me thy son‘. The other answers,‘I give him‘. He receives him with these words, ‗I take
thee for the fulfilment of my religious duties. I take thee to continue the line of my
ancestors.‘113 [Baudhayana II 7---9]
111
112
. Dattaka amimansa V-50 (Suth)70
113
57
According to the above texts the following two ceremonies are necessary
I. Datta grahana (physical act of giving and taking the boy from one
family to another)
II. Datta homam (oblation of clarified butter to fire)
III. Other minor ceremonies such as putresti jag (sacrifies for male
issue)
Datta grahana
For the valid adoption there must be physical act of giving and taking the child
in adoption. The physical act of giving and receiving is absolutely requires for the valid
adoption. Giving and taking are the operative part of the ceremony being that part of it
114
which transfers the boy from one family to another. The adoption means the transfer
of a Hindu son from a family where he was born to another family which has taken him
in adoption, so the Datta Graha or giving and taking ceremony is required. The physical
act of giving and taking ceremony must be proved.
Under the Hindu Law, among the regenerate caste or among Sudras, there
cannot be a valid adoption unless the adoptive boy is transferred from one family to
another. The giving and taking ceremony is very essential and the law does not accept
any substitute for it.115 There is no particular form of giving and taking ceremony, but
the natural parents must give the son to the adoptive parents and adoptive parents must
take the son in adoption. The nature of the ceremony may vary depending upon the
114
. Supra note 17,p. 524
115
58
circumstances of each case.116 The act of giving and taking proves the intention of the
adopter and adoptee. It must be free from fraud and force. There is no particular form
for the giving and taking ceremony as prescribed by the Hindu Law. The giving and
taking ceremony is essential and indispensable ceremony which can be supplemented
but cannot be substituted by another ceremony.
Again if there is no proof of the actual giving and taking ceremony in adoption,
it is sufficient that the boy was treated as adopted son for a long time for validity of the
adoption. A mere declaration of the execution of the will or deed of adoption or oral
declaration of the adoption is not sufficient if there is no taking and giving ceremony of
the child in adoption. No particular form was prescribed but the requirement is to hand
over the adopted child by the natural family and receive the son by the adopted family.
The nature of giving and taking the son in adoption may vary from case to case.
Diverse circumstances must necessitate that the act of actual giving and taking
should be delegated to a third person. In some circumstances, after exercising their
volition to give and take the boy in adoption , the natural as well as adoptive parent can
delegate the act of giving and taking him by way of adoption to a third party. The father
and mother authorised a particular person to give the child to another person. Except
these circumstances the power of giving and taking the son cannot be delegated to a
third person.
Datta Homam
Datta Homam is the act of the burning of clarified butter offered as sacrifice by
way of religious propitiation or oblation with the object of effecting a change in the
116
59
gotra of the child.117 The ceremony of datta homam may be performed by the parties
who give and receive the boy in adoption or the performance may be delegated by them
to another. The datta homam may be performed at any time after the physical act of
giving and taking or may be performed after the death of the adoptive father or of the
natural father. According to the Dattaka Mimansa and the Dattaka Chandrika , the datta
Homam is required for a valid adoption in three higher classes.
But the datta Homam was not necessary in case of adoption-
i. by a Sudras or
ii. by regenerate classes when both the adopter and adoptee belonged to the
same gotra or
iii. by a widow , whether Sudras or Brahmanni
No religious ceremony of datta Homam was required amongst Sudras, only the
ceremony of giving and taking is required for a valid adoption. In Govind Dhondo vs.
Godubai Dhondo118 it has been stated that the giving and taking the child in adoption
are regarded as secular acts and can be performed by Sudras. As they have no gotras the
adoption amongst the Sudras need not be performed in the presence of agni so no datta
homam is necessary.119Again when the adopter and the adopted son belong to the same
cast i.e. amongst the twice born classes then also the datta homam was not essential.
But from the various cases we can say that it is not clear whether the datta homam was
required or no among three regenerate classes.
117
Supra note 116, p.852
118
. A.I.R 1946 Bom 439:228 I.C. 90
119
. Supra note 43 p 854
60
The Madras High Court has given different opinions in various cases regarding
the requirements of datta homam among the Brahman. The Madras High Court in
Singamma vs. Venkatacharlu120 had held that datta homam was not requiring among the
Brahmans in Southern India. Again Madras High Court in Chandra Mala vs.
Muktamal121 held that datta homam is not required among the Kshatriyas. In Venkata
vs. Subhadra122 the Madras High Court again held that datta homam is essential among
the Brahman. Finally in Subbarayan vs. Subbammal123 the same Court treated datta
homam as an essential ceremony for a valid adoption among Brahman. In Bombay datta
homam is necessary among twice born classes as held in Govind Prasad vs. Rindabai.124
The ceremony of Datta Homam may be performed at the time of the
performance of physical act of giving and taking the son in adoption or after the death
of the natural father or adoptive father. The ceremony of Datta Homam can be delegated
to another person.
Factum valet
The texts relating to the capacity to give, to take and to be given the subject of
adoption are mandatory. An adoption made in violation to the authorities of Hindu Law
is regarded as invalid. So the principle of factum valet is ineffectual in the case of an
adoption in contravention of the provisions of those texts. The proper application must
120
. (1968) 4 MHCR 165
121
. (1883)6 Mad. 20,24
122
. (1884)7 Mad. 548
123
. (1898)21 Mad. 497
124
. (1925) 49 Bom. 515
61
be limited to cases in which there is neither want of authority to give nor to accept, nor
imperative interdiction of adoption. The principle of factum valet may be properly
applied in cases in which the text are not mandatory or only indicates particular persons
as more eligible for adoption than others.
The principle of factum valet is ineffectual when the evidence is lacking for the
ceremony of giving and taking and the adoption of an orphan given away by his elder
brother is invalid and the doctrine of factum valet cannot be invoked. Similarly adoption
of an illegitimate son cannot be validated by the application of the doctrine of factum
valet.
2.6.5 Other requirements
Besides the above requirements an adoption is regarded as valid under the
traditional Hindu principles if it is made with the free consent of the person giving and
taking the son where the consent is obtained by fraud, coercion, misrepresentation,
mistake, undue influence that the adoption was regarded as voidable at the option of the
party whose consent was so obtained.
An adoption is valid merely because the person giving in adoption receives a
consideration for the adoption from the person taking in adoption, though the promise to
pay cannot be enforced in law.125 Acceptance of a boy by one person from another for
the consideration of money is separated from the illegal agreement of any types of
126
transaction.
125
126
. Murugappa Chetty vs. Nagappa Chetty (1906) 29 Mad 161
62
2.7 Revocation of an adoption
Once a valid adoption is made it cannot be cancelled by the adoptive father or
other parties. The adopted son also cannot cancelled the adoption and cannot return to
his biological family. After adoption he was regarded as an adopted child of the
adoptive family. He can only renounce his right of inheritance in the adopted family.
The Goda-datta form of adoption could be revoked and annulled by the either parties by
custom.
2.8 Effect of a valid adoption
Manu declares that-‗the adopted son takes the wealth of his adoptive family. He
shall never take the family name and estate of his natural family. The funeral cake
follows the family name and estate: but of him, who has given away his son, the funeral
oblation is extinct‘127 (Manu IX141 142)
According to Manu, he ceases all the relation with the natural family; he has no
right over the natural family. The main purpose of Hindu to adopts a son is to offer
funeral oblation. After adoption the adopted son is regarded as the sapinda of the
adoptive family. Mitakshara also followed the text of Manu according to whom an
adopted son is the heir not only to the adoptive father but also to his kinsmen.128 Manu
has expressed that the transfer of an adopted son from one natural family to another
family is said to be complete by declaring that an adopted son shall never take the
127
128
.Manu IX 141,159, Mit. I,XI,31
63
family name and the estate of his natural family. All the rights over the natural family of
the adopted child comes to an end after adoption.
But according to Dayabhaga the adopted son is the second six of the twelve
secondary sons.129 In adoption the adopted child is transferred to the adopted family
from the natural family. The adopted son becomes the member of the adoptive family.
After adoption the adopted child loses all the rights over his natural family, he cannot
take any share in the coparcenary property of his natural family. He cannot entitle to
inherit the property of his natural family and he will not liable for any debt of his natural
family.
An adopted son cannot be divested of the property which had already vested by
inheritance, gift in him follows the general rule that an estate once vested cannot be
divested nor does it disqualify one for adoption.
The Dattaka Mimansa and the Dattaka Chandrika lays down that the adopted
son is a substitute for a real legitimate son both for the purpose of funeral oblations and
that he is sapinda to the member of the adoptive family and that the forefather of the
adoptive mother are his maternal grand-father.130 According to Dattaka Mimansa and
Dattaka Chandrika he is entitled to inherit not only to his adoptive father but also to his
father and grand-father just as if he were natural born son. Conversely, the adoptive
father and his relations are entitled to inherit to the adopted son as if he were born in the
family, he hold all rights as a natural born son in the maternal line as in the paternal line
and so he is entitled to the adoptive father and mother and their relations. So
129
130
. Dat. Mim. VI 50-53, Dat.Cha. III 17,20 V 24
64
accordingly in Surjokant Nandi vs. Mohesh Chunder131 it has been held that the
adoptive son of a daughter has equal right to share left by his maternal grandfather with
the legitimate son of another daughter.
Under Hindu Law an adopted child is deemed to be begotten by the father who
has adopted him. Taking of a son as a substitute for the failure of a male issue and its
object is twofold: (1)to secure the performance of the funeral rights of the person to
whom adoption is made and (2) to preserve the continuance of his lineage.
In other words, the main object of adoption is to secure spiritual benefit for the
adopter, though its secondary object is to secure an heir to perpetuate an adopter‘s
name. An adopted son is regarded as the continuator of his adoptive father‘s line exactly
as an aurasa son.
The theory of adoption depends upon the principle of 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.132
After adoption a son is removed from his natural family as regard all civil rights
and obligations. He ceases to perform funeral ceremonies for those of his family and
loses all rights of inheritance as if he had never been born. He loses his right in the
coparcenary property, the member of natural family cannot inherit from him. After
adoption the adopted son is entitled to inherit the property of his adoptive parents
likewise the adoptive parents also entitled to him. He is also entitled to the property of
131
. (1883)9 Cal 70
132 th
. Aiyar Chandrasekhare N. , ‘Mayne’s treaties on Hindu Law and Usage’, 11 edi., (1953), Madras:
Higginbotham’s p. 242
65
adoptive father‘s father and brother. The property inherited by the adopted son from his
adoptive father would be ancestral or self-acquired according to the nature of the
property inherited by him. He is the adopted son of both of his adoptive father and of
his mother whether she consented to his adoption or not. He succeeds both to him and to
her because a son adopted by the father becomes also the son of his wife, even though
the adoption might have been made when the wife was dead or she being then living,
without her consent or in spite of her opposition.
Again Justice Mitter has stated in Uma Shankar Vs. Kali Komul133 that the
theory of adoption implies the principle of 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‘. The
effect of the adoption is to confer on the adopted boy all the rights and privileges in the
family of the adopter as the legitimate son.
Only in two circumstances an adopted son cannot acquire the same status as
that of the natural child- i) where a son is born to the adoptive parents ii) where he has
been adopted by a disqualified heir.
There was an exception to the principle that the adopted child could entitle equal
share with that of the natural son. When a person after adopting a child give birth to a
son then the adopted son will not entitled to equal share with that of the natural son. On
133
. (1881)6 Cal 256 (F.B.)at pp 259-260
66
a partition between him and the after born natural son, he will entitled to the share with
equal to that of the aurasa son but he takes134
A. in Bengal, 1/3 of the adoptive father‘s estate
B. in Banaras, ¼ of the adoptive father‘s estate
C. in Bombay and Madras, 1/5 of the adoptive father‘s estate
According to Vasistha if after an adoption has been made a legitimate son is
born the adopted son is entitled to a fourth part. Baudhayana and Dattaka Chandrika
also followed it. According to dayabhaga the adopted son get 1/3 share of the
inheritance.
If the estate is impartible, the aurasa son alone succeeds to it. The after born son
is preferred to the adopted son as the adopted son is substitute for aurasa son, he
excludes the substitute.
There is an exception to the principle that after adoption the adopted son is
entitled to inherit the property of the adoptive family. After adoption when the adoptive
parent gives birth to a child then the adopted son cannot claim the same share as that of
the after born child he takes a fourth share of the adoptive family as laid down by
Vasistha. The adopted child in such case takes in Bengal one-third of the adoptive
father, in Banaras one fourth of the estate, in the Bombay and Madras one fifth of the
estate of the adoptive father .The child adopted by a disqualified person cannot acquire
the full right as that of the natural parent.
After adoption all the relation with the natural family comes to an end. But this
severance from the natural family does not cease the tie of physical blood relation with
134
67
the member of the natural family. After adoption the adopted child remain retain the tie
of blood relation with the natural family, so he can not marry a girl within the prohibited
degrees of the natural family and he cannot adopt from that family a boy whom he
could not have adopted . Equally he cannot marry with a member of the adoptive family
within the forbidden degree. It was held that the natural parents must transfer the son in
adoption with any consideration. If he takes consideration in adoption then such
adoption is regarded as the immoral or illegal or oppose to the public policy.
According to the ancient Hindu Law, a married person also can be adopted.
Where a married person is adopted and if he has a son living then the son cannot lose
his gotra and right of inheritance in the family of his birth and he cannot acquire the
gotra and the right of inheritance of his father. But it was held in Tarabai vs. Babgond135
that where the married person is adopted during the pregnancy of his wife and a son
born to him then the son passes to adopted family on his birth, such child can acquire
the gotra of adoptive family and the right of inheritance of the adoptive family of his
husband. Such child regarded as the member of that family.
In the ancient Hindu Law an orphan cannot be adopted except permitted by the
custom. If an orphan is adopted by a Hindu according to the custom prevailed in exist
at the time of adoption then that child acquire the same status as that of the child of the
adoptive family and will be treated as a child of the adoptive family. But for this the
custom must be a valid custom , must prevail in exist, must not oppose to the public
policy , must be moral and reasonable .If the custom is not valid then the adoption of an
orphan is regarded as void.
135
. A.I.R. 1981 Bom 30
68
An adoption will be invalid if all the requirements of valid adoption is not
complied with and when it is made with coercion, fraud, mistake, misrepresentation or
undue influence. An invalid adoption does not arise any right to the adopted child. The
adopted son of the invalid adoption neither create nor loss any right of that of the
adopted family.
Succession ex-parte paterna
After adoption the adopted son entitles all the rights with that of the natural son.
He also entitles to inherit the property in the adoptive family as if he were a natural born
son of the adoptive parents. He is entitled to inherit to the adoptive father, grand-father
and other most distance lineal ancestors of the adoptive father and other collateral
relations. Conversely the adoptive father and other relation are entitled to inherit to the
adopted boy as if he were a son born in the adoptive family.136
Succession ex-parte materna
An adopted son is entitled to inherit to his adoptive mother and her relation like
her father and brothers. Conversely the relations of the adoptive mother are entitled to
inherit to the adopted son. When at the time of adoption the wife of the adopter was
dead than also the adopted son entitled to inherit to the relations in her fathers‘ family.
Where a Hindu having more than one wife makes an adoption in conjunction with one
of them specially selected for the purpose the wife so selected is the adoptive mother
and the others are the step mothers and the adopted son inherits only to the adopted
mother not to the step mothers.
136
69
Adoption made by a widower
When a male Hindu adopts a son after the death of his wife the adopted son will
be not regarded as a son of his deceased wife. But after enacting the Hindu Law of
Inheritance (Amendment) Act 1929 in various cases the Court gave their different
opinions. In Sundaramma vs. Venkatasubba137 the Madras High Court has held that the
adopted son shall not be regarded as a son of the deceased wife of adoptive father. The
said decision follow in another case, according to Supreme Court the adopted son of a
man who is widower becomes the son of his deceased wife so as to inherit to her
relation in her father‘s family. The Full Bench decision based on the ground that the
term ‗pratigrahitrimate‘ in the Dattaka Mimansa VI, 50 and Dattaka Chandrika III, 17
means only an adoptive mother who actually receives a boy in adoption. Where an
adoption made by a widow, it relates back to her husband‘s death, but where an
adoption is made after the death of his wife there is no reason why it should date back to
an earlier date such as the death of his wife. According to Datttaka Mimansa when a
widower adopt it is deemed that she is alive at the date of adoption or that the adoption
should be related back to the death of his wife.
For the legal fiction of maternity, the wife must be in existence at the time of
adoption. But in consequence of the superiority of the husband, by his mere act of
adoption the filiations of the adopted son of the wife, is complete in the same manner as
her property in any other thing accepted by the husband.138 Regarding this confusion
Mayne made a conclusion that a person can be the mother of the adopted boy where she
is in existence as a wife at the date of adoption whether or not she consents to it.
137
. (1926) 49 mad.941
138
70
Where a man has more than one wife and associates one of them in the adoption
that wife is the adoptive mother. After his death the adopted son succeeded and on his
death the succession to him was disputed by the widows, one claiming as senior widow,
the other as adoptive mother. It was held that the wife who was associates in the
adoption was the heir as adoptive mother and not the senior widow. A man may
authorise one of his wife to adopt that wife must stand in the place of natural mother.
Again it has been held that where a male gives joint power to his wives to adopt then
the senior wife will be regarded as the adoptive mother.
So a Hindu having more than one wives makes an adoption in conjunction with
one of them, that wife will be his adoptive mother and other are the step mother. The
adopted son inherits only to the adoptive mother and to her relation and she and her
relation can inherit to him.
Doctrine of Relation Back
According to the ancient Hindu Law a female Hindu cannot adopt. She had no
right to adopt a child. But a widow could adopt in the name of her husband or to her
husband but she could not adopt to herself. If she adopts to herself then such adoption
does not create any right and privilege in the adoptive family to the adopted child.
Where a son is adopted by a widow to his decease husband then such adoption will be
effected from the date of the death of her husband not from on the date of the adoption.
There should not be any difference between the date of the death of her husband and the
date of the adoption; this doctrine is known as doctrine of relation back. The child
adopted by widow is related back to the date of the date of her husband. This doctrine is
71
not found in any text, it is deduced from the decision of Amarendre Mansingh Vs.
Sanatan Singh139 and Anant vs. Shankar140
An adopted son is entitled to inherit to his adoptive mother and her relation for
instance, her father and brothers. Even if the wife of the adopter was dead at the date
of adoption, the adopted son becomes her son by virtue of the adoption and is entitled as
such to inherit to the relations in her father‘s family. Such an adopted son cannot divest
the heirs of the deceased mother of property to which they had already succeeded
before the adoption took place.141
Rights of an adopted son in separate property
The power to dispose of the separate property of the adopted son by will or gift
does not prohibit after the adoption. There must not be any agreement between the
adoptive father and son or natural father not to dispose his separate property.
The adopted son has no equal right with the natural son in respect of the separate
property of the adopted father. The adoptive father could dispose his separate property
by will or gift by which the right of inheritance of the adopted son may be defeated.
Alienation of separate property by the adoptive father is not revoked. Any alienation of
separate property of the adoptive father by will before adoption is binding on the
adopted son. Again we can also mention that if the separate property dispose of by a
139
A.I.R.1933 PC155
140
A.I.R.1943 PC195
141
. Supra note26, p 829
72
male Hindu by will after his death the widow adopt a son then that disposition by will is
not affected by adoption.
Rights of an adopted son in coparcenary property
If any alienation of coparcenary property is made by one of the coparcener in a
Mitakshara Coparcenary family then the alienation cannot be revoked by the adoption
of a son after alienation. After adoption the child become the member of the coparcener
in case of Mitakshara Coparcenary. He entitled all the powers and rights like the other
coparcener. He has also the right of survivorship. The adoptive father cannot by will or
deed interfere with the right of survivorship of the adopted son in the Coparcenary
family. A valid alienation of the coparcenary property is binding upon a son adopted
after the date of alienation.
Where the last male owner makes a valid bequest of his property and also gives
his widow the power to adopt, the adopted son is bound by the disposition of property
by will.142 If under the will the widow is entitled to a life estate in the property and the
adopted son to a vested remainder and to a certain sum for his maintenance, it is
competent to him to convey his interest to the widow and thus enlarge the life estate
into an absolute estate in consideration of the increase the amount of maintenance.143
2.9 Effect of an invalid adoption
Where there has been an adoption in form, but such adoption is invalid, the
adopted son does not acquire any right in the adopted family and he does not forfeit any
right in his natural family. An invalid adoption works nothing. It loses nothing or
acquires nothing. A person whose first adoption is invalid can validly be given or taken
142
Supra note 26, p 833
143
. ibid
73
in adoption the performance of the upanayanam after his first invalid adoption will not
be a bar to his subsequent adoption. When a gift is made to such an adopted son of an
invalid adoption then the validity of the gift depends on the intention of the donor or the
testator.
2.10 Evidence of an adoption
There is no particular rule of evidence to prove an adoption. Any person who
seeks to displace the natural succession of property by alleging an adoption must
discharge the burden that lies upon him by proof of the factum of adoption and the
performance of any necessary ceremonies as well as such facts as are necessary to
constitute a valid adoption.144 The burden is on the person who asserts that he is the
adopted son, an admission of the widow that she adopted the plaintiff shifts the onus on
to her on the principle that what a party himself admits to be the true may be any
reasonably be presumed to be so. The evidence in proof of the adoption should be free
from all suspicion of fraud and so consistent. The burden to proof is difficult where the
adoption is made a long time after the date of the alleged authority to adopt. Where
there is a long gape between the date of adoption and its being questioned, every
allowance for the absence of evidence to prove such fact must be favourable
entertained. Failure to produce accounts may be a very
suspicious circumstance.145 Although no writing is necessary the court would critically
scrutinise all the relevant facts and circumstances of the case particularly w
144
145
74
here the property involved is large and having regard to the position of the parties, the
way in which an execution of a deed of adoption would normally take place.
2.11 Estoppel
The rule of estoppel is laid down in Section 115 of the Indian Evidence Act
1872. A person who is entitled to dispute an adoption may by his declaration act or
omission be estopped from disputing it. Estoppel is purely personal and it cannot affect
any one who claims by an independent title and who is not bound by the acts of the
person estopped. Estoppel does not confer status. It rules out denial of adoption by the
concern persons on this issue. In order to create an estoppel it is quite unnecessary that
the person whose acts or declaration induced another to act in a particular way should
have been under no mistake himself or should have acted with an intention to mislead or
deceive. Neither acquiescence nor even presence at an adoption ceremony would create
an adoption.
2.12 Conclusion
From this chapter on the uncodified Hindu Law of adoption the researcher has
observed that the practice of adopt a child of another was prevailed, in the ancient
period, among the Hindu. This practice was well recognized by the various texts of
Hindu Law. According to the sages of Hindu Law a Hindu man could adopt only a male
child for the continuation of his family line. A female could not adopt. From the concept
of adoption the researcher have observed that in the ancient Hindu period there was no
principle of equity as because the female Hindu were discriminated in respect of
adoption.
75

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CHAPTER: 2

UNCODIFIED HINDU LAW OF ADOPTION

destitute of male offspring.3

TRA (MANU IX 137 138)5

therefore women should be loved and protected.‘ 6

family, there is no place for a man destitute of male.7

who were accorded the position of a son were the following-

i. Aurasa or legitimate son-means a son begotten by the father upon his

benefit as well as for the continuance of the family.

would belong to her father.

son of the woman‘s husband.

He became the son of woman‘s husband.

v. Kanina or son born to an unmarried female became the son of the

maternal grandfather, because a wife and maiden daughter belonged

to their owner in the same way as a calf produced by a cow, become

the property of the owner of the cow.9

now deemed aurasa or real legitimate son but he was disapproved by

the sages and he is enumerated among the secondary son.

vii. Dattakka or adopted son – a son given in adoption by his father or

husband‘s assent gives a son to a man who accepts him as a son.

hands of his father or mother after paying a price. In other words, he

purchased a son from the natural parent with the consideration.

adoption with his own consent.

x. Svayamdatta- If a boy after losing his parents or being abandoned by

them, attaches himself to a man then this boy is called svayamdatt or

a son self given.

of marriage, but sohodhaja is the child of a man who is of equal class

with the bridegroom.

recognised by a particular Smriti-writer.

KINDS OF MANU GAUTAMA BAUDHA VASISTH YAJNAVA NARAD BRAH

SON YANA A LKYA A ASPAT

2.2 Adopted son & Dattaka son

following Rig-Vedic verses—

―parisdyam hyaranasya rekno nityasya rayah patayah syama na seso agne

anyajatama styacetanasya ma patho vi dukush. Nahi grabhayaranah susevo anyodaryo

mannasa mantava vadha cidokh punarit sa etya ano vajyabhisaletu navyah‖

(Rigveda VII 4, 7------8)

Manu defines an adopted son as ―A son equal in caste and affectionately

known as dattaka son‖.16

position of the adopted son.

2.3 Forms of adoption

districts.21 The main characteristics of kritrima form of adoption are:

a. In this form of adoption there is no restriction on the person to adopt the

can adopt in her own name in this form of adoption.

the parent is necessary.

d. In this form of adoption, performance of ceremonies is not required but there

actual contract between the parties present together, in person expressing to

one another their consent.23

Illatom Form of Adoption

partition with the father-in-law unless there is an express agreement or custom.26

Dwyamushyayana Form of Adoption

Dwyamashyayana.29 If the cause of the incomplete transfer be the antecedent

performance of the rites of tonsure, the child is called Anitya Dwyamashyayana.30

Customary Form of Adoption

A customary adoption in Punjab is a mere appointment of an heir creating a

― mata pita va dadyatang yamaddhih putramapadi

Sadrisang pritis angyoktang sajneyodtrimal sutah‘