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

116 VYAVAHĀRAMAYŪKHA [ S. IV § 10
M. p. 57 ll. 6-14 ]
owes his birth to his mother and father (Hence) the mother and the
father have power to give to sell or to abandon him But one should not
give or accept an only son¹ for he saves a man (from put hell) A
woman should neither give nor receive a son (in adoption) unless with the
permission of her husband² One about to take a son in adoption should
after having invited his kinsmen having informed the ruler³ (of the intended
adoption) and having performed a homa in the middle of his house with
the vyāhṛtis take (in adoption) only him who is closely related and
who is a kinsman not remote (in habitation and speech)⁴ If a doubt arises
(as to the family and qualities of the person to be adopted) he (the person
desirous of adopting) should treat one whose kinsmen are in a remote place
as if he were a śūdra for it is declared (in the Brāhmaṇa works) that by
means of one (son aurasa or adopted) he (the adopter) saves many
If after a son is taken (in adoption) an aurasa son is born (to the adopter)
he (the adopted son) shall be the recipient of a fourth share⁴
1 One only son—In the printed Vasiṣṭha Dh. S. we read 'for he is (required)
to continue the line of his ancestor's' in place of 'for he saves &c.' This text was very much
discussed in several cases in connection with Jaimini's rule that certain texts containing
the statement of a reason are merely recommendatory Vide Beni Prasad v Hardai Bibi
14 All. 57 (F B) at pp. 72-78 and Radha Mohan v Hardai bibi 21 All. 460 (P C. )
at p. 480 for discussion of Jaimini. Jaimini's rule is contained in what is called the
hetuvan-nigaḍādhikaraṇa (I 2. 26-30) Vide also 22 Mad. 398 (P C. ) at p. 425.
2. This text of Vas. has given rise to varying interpretations. According to the
Dattaka mimāṁsā, a widow cannot adopt at all as her husband's permission cannot be had
at the time of adoption Others hold that the widow can adopt, if the husband gave her
authority to adopt. The Madras decisions hold that the words consent of the husband are
only illustrative and a widow can adopt also with the consent of the sapiṇḍas of the husband
The Mayūkha holds that a widow can adopt a son or give her son away even in the absence
of the husband's consent provided he has not prohibited her from doing so. Vide for this
passage Vithoba v Bapu 15 Bom 110 at p. 131 (where Mandlik's translation 'her father' is
regarded as correct and relied upon) and Rangubai v Bhagīrthībai I L. R. 2 Bom. 377 at
p. 380 the Collector of Madura v Mootoo 12 Moo. I A 397 at pp. 435-436 and Rajah
Venkatappa v Ranga Rao 39 Mad. 772 at p. 776.
3. Vide Narhar Govind v Narayan I L. R. 1 Bom. 607 where it was held that
the sanction of Government to an adoption by a Kulkarni or his widow is not necessary
to give validity nor has Government any right to prohibit or otherwise intervene in such
an adoption. Vide also Balaji v Datto 4 Bom. L. R. 702 ( = 27 Bom. 75).
4 This has been interpreted in Bombay as meaning that he takes 1/4 of what the
aurasa takes and not of the whole estate i. e the adopted son takes 1/5 and the subsequently
born aurasa son 4/5 Vide Giriappa v Ningapa 1 Bom 100 at p. 101 where this text is
quoted and also the remarks of the V M a little later on about the Dvyāmuṣyāyaṇa (at p.
116 text). Vide also Dhondo v Appaji P J 1893 p 6 Tukaram Mahadu v Ramchandra
49 Bom 672=27 Bom. L.R 921 (where it is held that there is no distinction in respect of the
share even among a śūdras) In Bala Krishnayya v Venkata Triambakam 43 Mad. 398 it
was held in a suit for partition brought by the father and the aurasa son against the pre-
viously adopted son that the adopted son would get 1/9 the father and aurasa son 4/9ths each.
But in Perrazu v Subbarayadu 48 I A. 280 ( = 44 Mad. 656) the Privy Council held that
among a udras in Madras and Bengal an adopted son shares equally with an after born aurasa
son as the Dattaka-chandrikā says. Vide Asita Mohan v Nirode Mohan 20 C. W N 901
P 115 (text)