he die or be unable to perform it, still it must be performed in his name and gotra.* REASON. For, then the relation of the adopted, as son to his natural father, having ceased to exist, the adopted alone is his father, and the adopted belongs to his gotra (race) only. REMARKS. Mr. Sutherland has translated the word 'punah,' contained in the third paragraph of this page, by repelition,' whence it appears to be his opinion that tonsure should be again performed by the adopter, even though once done by the natural father† nay, it is plainly stated by him, in note x1,‡ appended to his Synopsis, that it must be so done. But it is not laid down in any of the Sanscrit works that tonsure, once performed (by the natural father,) must be repeated by the adopter.-On the contrary, the author of the Dattaka-chandriká, asserting the term chúdàdi to be a compound ephithet denominated a-tadguna sambigyána bahu-vríhi (not including the meaning of the first word,) means that rites having chúdá (tonsure) at the beginning, that is upa-nayana and the rest, must be performed. And the Commentator has plainly laid down that, on adopting a boy, whose tonsure has been already performed, the adopter will not have again to perform his tonsure, but the upa-nayana and other rites preceded by puttreshti. Moreover, from the following dictum of the author of the Dattaka-chandriká-" Since extinction of relation to the family (of the natural father,) and so forth, is shown, and as a text recites : 'let the father initiate his own sons,'-the initiatory rites even of the adopted, which are yet to be completed, subsequent to adoption, are to be performed by the adopter; but those already performed by the natural father, are not to be cancelled," (Sect. II. § 20,)—it appears quite clear that tonsure, once performed, must not be annulled, and again performed by the adopter. Only, in order to obviate the fault of the tonsure having been previously performed the adopter shall have to perform the puttreshti, after which he must perform the upa-nayana and In the Dattaka-chandrika the period fixed for adoption is extended, with respect to the three superior tribes, to their investiture with the characteristic cords, which ceremony is termed upa·nayana, and is subsequent to that of tonsure, or chúdá-karaṇa, and with respect to shudras, to their contracting marriage. But investiture in the one case and marriage in the other, must be performed in the family of the adopting father.-Macn. H. L. Vol. I. p. 72. † See the fifth paragraph of the preceding page. See ante, p. 853. the rest, as the case may be. And to this, it is not customary to repeat the ceremony of tonsure, if once performed,—and when there is no such custom, it can by no means be repeated, even if there were an ordinance to that effect, for immemorial custom is the transcendent law, approved in the sacred scripture and codes of divine legislators, and wherever it obtains it supersedes the general maxims of the law.* The word punah', used in the above passage, is, therefore, a mere idiomatic particle having no distinct meaning. It is not a matter of surprise that the learned gentleman, who could not actually know what the initiatory rites are, and was not acquainted with the mode of performing it, should have made such a mistake as the above; but it would, indeed, be a matter of astonishment, were it to be followed by the Hindus. SECTION X. MERIT AND DEMERIT OF ADOPTED SONS, IN REFERENCE TO In reference to Gift: Vyavastha. AGE, FORM, &c. HEAD FIRST. 568. The son given in adoption by both of his natural parents, or by his father with the mother's consent, is the best; next to him is the son given by his natural mother with his father's consent; the son given by his father without his mother's consent ranks next to the above; the son given by his mother when his father has died, quitted the order of a householder, or emigrated, is one inferior but valid. The adoption of the son given by his natural mother under any other circumstances, or by persons other than the natural parents, is invalid.* Vyavastha Vyavastha 569. Should the boy, to be adopted, be an adult, his consent is also requisite.† even 570. The adoption of an only or eldest son, See ante, pp. 825-828. + To render the adoption valid and complete, it is necessary that the person adopted should assent, or, being minor, be given by a competent party. On the subject of the legal ability to give a son in adoption, some difficulty exists in extracting a consistent doctrine. The more correct opinion appears to be,-1st, that the father may give away his minor son without the assent of the mother, though it is more ludable that he should consult her wishes,-2nd, that the mother generally is incapable of such gift while the father lives, 3rd, that she, however, on her husband's death, may give in adoption herminor son, and even during the life of that person, in case of urgent distress and necessity, (see ante, p. 822.) A man, who had permanently emigrated, entered a religious order, or become an outcast, being civilly dead, would be regarded as virtually deceased.-Suther land's Synopsis, Head Second. Texts of law, indeed, are not wanting, prohibiting generally the gift of a son against his will: but it seems a correct construction, that such texts merely refer to the adult son. A minor legally can have no will.-Ibid, Note VIII. "She may, having her husband's authority, not otherwise." The answer is according to the doctrine of the Bengal school, but the followers of the Mitakshará, in the Benares and Maháráshtra schools, admit the widow's power of adoption, without authority from her husband, if she have the sanction of his kindred, -Strange's H. L. Vol. II. p. 63. lawyers, valid, though immoral ;* it is, however, not so, according to the ancient lawyers. : Indeed, none of the holy sages appears to have been of opinion that the adoption of an only son or eldest son, as an absolute dattaka, should ever take place on the contrary, from the text, "An only son, let no one give or accept, for he is to continue the line of his ancestors," as well as from the following passage, "nor, though a numerous progeny exist, should an eldest son be given, for he chiefly fulfils the office of a son, as is shown by the following text: 'By the eldest son, as soon as born, a man becomes the father of male issue," it is clear that gift and acceptance of an only or eldest son are strongly prohibited.*The old doctrine must, therefore, be said to be in accordance with the intention of the holy legistators. HEAD SECOND. In reference to acceptance, Vyavastha 571. If a boy be received, by the man himself, for whom he is to be adopted, in conjunction with his wife, or by him alone, in case of his being without a wife, such adoption is the most laudable one; next to it is the adoption by a woman As the husband's kindred may authorise the widow to make an adoption, (See note to Mitákshará on inh, ch. I. Sect. 11, § 9:) wherever the authority of the Vigyaneshwara, Mayukha, and works of the same school is followed, her son's sanction would no doubt be sufficient. It is otherwise in Bengal, where no sanction but the husband's can avail. A written authority is doubtless not indispensable. - Colebrooke's Remarks.-See Str. H. L. Vol. II. p. 72. The adopted must consent: but if, as usually happens, he is an infant at the time he is bound by the act of those by whom he is so given. -Strange's H. L. Vol. I. p. 76. A son is also given for the purpose of adoption; this being done as an act of duty to relieve the adopter's distress arising from the want of male issue, no penalty is incurred: the assent required is found in the want of opposition; for, it is a rule that not to forbid is to assent.-Coleb. Dig. Vol. II. p. 106. The filiation of a son given under the age of five years is legally valid: his then utterance of consent would be taught like the speech of a parrot or the like; there is no authority for admitting, in judicial procedure, words spoken by an infant under the age fit for business: therefore, in ordaining that "both parents have power to give, to sell, or to desert a son," his assent is required for the gift or sale, if he be acquainted with affairs, or adult in law.-Coleb. Dig. Vol. II. p. 109. * See ante, p. 830, and Coleb. Dig. Vol. III., pp. 242-272. under her husband's authority; the adoption made by her, not under her husband's authority, but with the permission of any one else, is invalid.* In reference to relation, Vyavastha ́? HEAD THIRD. 572. A brother's son is the best, in default of him a sapinda of the same gotra, in his default, a sapinda of another gotra, on failure of such, a kinsman though not a sapinde should be adopted; and these are preferable to one another according a stranger to the degree of propinquity: on failure of the above, even is to be received, but he would be an inferior dattaka. Vyavastha ́? 573. The adoption of a stranger is not, however, invalid, even though there were available a near re lation for the purpose.† 574. That boy must not be adopted to whose na Vyavastha tural mother or father the adopter or adoptress could not have been married without incest.‡ Vyavastha. ́ laudable act.t Vyavastha 575. A daughter's son or sister's son may be adopted by a Shúdra: though such adoption is not a 576. The adoption of one from a different tribe is in every respect invalid.§ * If it is contended, then, that she may adopt a son with the assent of the kins even, it is wrong for the term "husband" would become indefinite, and the purpos would not be attained. Now the purpose of the husband's sanction is that the filiatio as son of the husband, may be completed even by means of an adoption made by the wife.D. Mím. Sect. I. § 118. † See ante, pp. 832 et seque. See the Chapter on marriage. See also ante, p. 842. Brother.] From the masculine gender being used, it results, that brothers and sisters also, of the whole blood, are not reciprocally the adoptive parents of the son (of any of of them:) and this conclusion is confirmed by the mention of two terms (in that gender.) VRIDDHA GOUTAMA declares the same : "In the three superior tribes, a sister's son is se where mentioned (as a son.)" The expression 'sister's son' is inclusive of the son of brother also. Hence this meaning is deduced, that brother's son must not be adopted by a sister: for brothers only are mentioned to be adoptive parents (in the text of MANC and. p. 834.) D. Mím. Sect, II. § 32, 33. § See ante, pp. 821 et se |