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

118 VYAVAHĀRAMAYŪKHA [S. IV 5. 18-19 / M. p.57 l.34-p.58 l.3]
even without the permission of her husband ¹
Adūrebāndhavam (in Vasiṣṭha's passage above) means a near sapi-
ṇḍa as far as possible. And even among nearer (sapiṇḍas) the brother's
son is the principal (adoptee) since Manu (9. 182) says :—
If among brothers sprung from the same (father) one has a son, Manu
has declared that on account of that son all become putrins (persons
having a son).

1. The decisions of the Indian courts and of the Privy Council on the widow's power
   of adoption are numerous, but as they have no direct bearing on the text of the Mayūkha
   they are passed over. It is important to note, however, a few Bombay decisions. In Ramji
   v. Ghamau 6 Bom. 498 (F. B.) it was held that a Hindu widow who has not the family
   estate vested in her and whose husband was not separated at the time of his death is not
   competent to adopt a son to her husband without his authority or the consent of his un-
   divided coparceners. In Yadao v. Namdeo 48 I. A. 513 certain dicta of their Lordships (at
   pp. 524–526) of the Privy Council seemed to cast doubts on this Full Bench decision, but
   it was held that the Privy Council decision had not overruled the Full Bench decision in
   6 Bom. 498 and that a widow in a joint family cannot adopt without the consent of
   surviving coparceners (vide Ishwar Dadu v. Gajabai 50 Bom. 468 F. B. = 28 Bom. L. R. 782).
   But in Bhimabai v. Gurunathgouda 35 Bom. L. R. 200 (P. C.) the Privy Council has
   very recently overruled the decisions in Ramji v. Ghamau and Ishwar Dadu v. Gajabai
   and has held that the widow of a coparcener in a joint Hindu family in the Mahratta
   country of the Bombay Presidency has power to make a valid adoption without either the
   express authority of her husband or the consent of surviving coparceners. The Privy
   Council relies on their earlier decision in Yadao v. Namdeo and refer to Mayūkha viz. the
   words 'the permission of the husband... Hence a widow has authority to adopt &c.) Ranade J.
   in Payapa v. Appanna I. L. R. 23 Bom. 327 stated the settled rule as: 'It is only the
   widow of the last full owner who has the right to take a son in adoption to such owner and
   that a person in whom the estate does not vest cannot make a valid adoption, so as to
   divest (without their consent) third persons in whom the estate has vested of their pro-
   prietary rights' (p. 329) and then specifies four exceptions to this rule. It is submitted
   with great respect that the Privy Council decision is most unsatisfactory and does not
   correctly interpret the words of the Mayūkha and the spirit underlying it. The Mayūkha
   is here explaining the words of Vasiṣṭha 'anyatrānujñānād-bhartuḥ' and is obviously
   combating the view of the Benares lawyers represented by Nanda Pandita (vide p. 116 n.
   2 above) that a widow cannot adopt at all or without an authority from the husband. But
   there is nothing to show that he establishes the proposition that even a widow in a joint
   Hindu family can adopt not only without authority from her husband but also without the
   authority of (and even against the wishes of) her husband's undivided father or brothers.
   The noble Lords say: 'The Mayūkha and the Kaustubha which govern the Mahratta school
   regard adoption by a widow as a religious duty which does not require the authority either
   of the husband or of his kin men' (35 Bom. L. R. 200 at p. 209). But this is entirely
   wrong since the Mayūkha expressly says, (p. 117 ll. 4-5) in the case of a widow adoption takes
   place even without it (i. e. husband's permission) 'with the assent of the father and failing
   him with that of the kinsmen.' The Privy Council ignore these words of the Mayūkha
   and also forget what Kātyāyana (quoted by the the Mayūkha) expressly says about the widow
   engaging in religious acts without permission. Vide Sidappa v. Ningangowda 16 Bom. L.
   R. 663 and Yeshvadabai v. Ramchandra 23 Bom. L. R. 1320, where Payappa's case has
   been followed; but see Sangangouda v. Hanmantgouda 33 Bom. L. R. 1225 (where it was
   held that if a person dies leaving his widow and a son and that son dies leaving a widow
   the power of the mother to adopt is at an end and cannot be revived even by the consent
   given by the son's widow) and Shivappa v. Iravva 54 Bom. L. R. 533.