व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

108 VYAVAHĀRAMAYŪKHA [S. IV k. 4-6
[M. p. 51 l. 24-p 52 l 5
(or the primary) agent in effecting the purpose to be served by the birth of a
son as said in (Manu 9 106) a man becomes putrin (one who has got a son)
the moment the eldest son is born to him affects only the giver (of the
son) and not the acceptor (of the son)¹ (Nīl. refutes the view of the
Mit) This prohibition might indeed have affected only the giver if
this (text, Manu 9 106) did really prohibit the gift of the eldest son (in
adoption) But it contains no such (prohibition) since there is no reason
(to understand the text in that sense) and since the word putrībhavati con-
veying as it does that he becomes a putrin is simply meant to assert that
the debt (that a man owes to his ancestors) is paid off (by the birth of the
first-born son) On account of this (interpretation) the latter half (of
Manu 9 106) he (the father) becomes free from the debt of pitṛs (ances-
tors) and therefore he (the eldest son) is entitled to (receive) the whole
(wealth) from him (the father) is well construed (or connected with the
first half). Sarvam (in Manu 9 106) means the whole wealth
Only a male² can be a dattaka (adopted) and not a girl because
the pronoun saḥ (he) occurring in the passage he should be known as the
son given (Manu 9 168) that conveys the relation between a term (dat-
trima i. e. dattaka) and the object denoted by it can refer only to a male
of the same caste (as that of the person adopting) who (male) is the ob-
ject of the action of giving away on the occasion of distress the gift being
made by the parents and affection and water being the accompaniments
(guṇa) just as the word (the pronoun) tam in one should perform the
initiation (upanayana) ceremony on a brāhmaṇa of eight years* and one
should teach him (the Veda) refers to one on whom the initiation (upa-
1 The view of the Mit discussed above follows immediately after the words about
not giving a son when there is no āpad. The words are anāpadi na deyaḥ, dāturayaṁ
pratiṣedhaḥ, tathā ekaḥ putro na deyaḥ, tathāneka-putra-sadbhāvepi jyeṣṭho na deyaḥ'
The Mit. does not expressly say that the prohibition against giving the eldest affects the
giver only but Nīl. from the context holds that the Mit. meant that. The Bālambhaṭṭī how-
ever explains the Mit differently A man was born under three debts, one of which due to
his pitṛs (forefathers) he paid off by begetting a son (vide Tai. S VI 3. 10 5 Ait
Br VII 13). Paying off the debt of the ancestors and saving the father from put hell
(Manu 9 138) were the purposes served by a son.
2 In Gangabai v Anant I. L. R. 13 Bom 690 the adoption of a daughter by a brāhmaṇa
was held invalid after referring to the opening paragraph on adoption up to both should
give (p. 101 above) Another vexed question has been the adoption of daughters by naīkins
(dancing girls) In Mathura v Esu 4 Bom. 545 West J held that the custom of
adopting daughters cannot be recognised in the case of naīkins by the courts of law and
such adoption confers no right on the person adopted. This was followed in Tara v Auna
14 Bom. 90 and Hira Naikin v Radha 37 Bom 116. But the Madras High Court
in Venku v Mahalinga 11 Mad. 393 held that courts could recognise the custom of
adoption of daughters by naikins and the court dissented from 4 Bom. 545. This was
followed in 12 Mad. 214 But vide Sanjivi v Jalajakshi 21 Mad. 270
P 109 (text)