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

S. IV 5. 16-18 ] ADOPTION 117
M. p. 57 ll. 14-34 ]
The permission of the husband, however, is ( required ) only for a
woman whose husband is alive, since it ( permission ) serves an evident ( or
visible ) purpose; but in the case of a widow, it ( adoption ) takes place
even without it ( i. e. without husband's permission ) with the assent of the
father¹ and failing him with that of the jñāti ( kinsmen ) Hence it is that
Yājñavalkya ( I 85 ) lays down woman's dependence on her husband with
reference to a particular state alone (viz. during marriage and his life)
The father should guard the unmarried daughter, the husband when
she is married, ( her ) sons in her old age; failing them ( sons ), their
kinsmen ( should guard a woman ). A woman has no independence at
any time.
In the absence of him ( the husband ) or when, owing to old age and
the like, he is unable ( to protect her ) there is dependence ( for her ) also
on the sons and the rest By Kātyāyana also the assent of the father, hus-
band and the like has been stated with reference to particular states ( of
a woman )
Whatever acts for the benefit ( of her soul ) after her death a woman
does without being permitted by the father, the husband or the son brings
no fruit to her.

• Aurdhvadehikam ( in Kātyāyana's text ) means 'having reference to
  the other world ' Therefore that permission of the husband which follows ( as
  a matter of course as a requisite) in a certain condition (viz when he is living)
  is merely re-iterated in this ( passage of Vasiṣṭha ) and is not enjoined as a
  new and positive injunction² Hence a widow has authority ( to adopt )

1. The translation of Mandlik 'her father', which Mr Gharpure follows ( p 79 ), is
   not correct The word 'father' here must be taken to mean from the context ' the father
   of the husband' ( i e the widow's father-in-law ) and not her own father The father of the
   widow has nothing to do with the family and property of her husband The woman by
   marriage passes into the husband's gotra and his jñātīs become her jñātīs also So jñātīs
   here mean her husband's kinsmen Jñāti generally means agnatic relations, vide Manu
   8 264, 9 239 and Vishwasundara v Somasundara 43 Mad 876 at pp 884--885 where the
   meaning of sapiṇḍa and jñāti in the matter of taking consent is discussed and it is held that
   the latter word means agnates and that to an adoption by a widow her daughter's son's
   consent was unnecessary. In Kesar Singh v The Secretary of State for India 49 Mad 652
   ( where the decision in 43 Mad 876 was not approved of ) it was held that if no agnates
   were left the consent of a bandhu might suffice In Vithoba v Bapu 15 Bom 110 (where
   the adoption by a predeceased son's widow with the permission of her father-in-law was
   upheld though there was no consent of her brother-in-law ) Candy J appears to quote (at
   p 131 ) Mandlik's translation ' the husband's permission no independence at any
   time' with approval ( including the words 'her father' ) but the decision shows that the
   father in that case was the father of her husband ( and not her father ).
   2 The words of Vasiṣṭha ' a woman should not give without the permission
   of her husband' do not, according to Nīl prescribe a rule unknown from other sources ( i e.
   they do not contain an apūrvavidhi ), but they simply re-iterate ( i e they are a mere
   anuvāda ) what is well-known.