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442
INDIAN LAW

always has that permission. In Southern India, also, the widow may adopt without express permission, but the sapindas must give their sanction to make the adoption valid. Elsewhere the words have received their natural interpretation, namely, that the husband must in some way indicate his intention that his widow should have authority to adopt. The only person to whom an authority to adopt can be given is the wife or widow; and no widow can be compelled to exercise her power to adopt if she does not wish to do so. The father has absolute power to give away his son in adoption even without the consent of his wife. But her consent is generally asked and obtained before the son is given. After the father’s death the widow may give a son in adoption. The rule which in former times rendered it necessary that the nearest male sapinda should be adopted is obsolete, and the adoption of a stranger is valid, although nearer relatives otherwise suitable are in existence. A man may adopt any child whose mother he could have married if she had been single; if he could not have done so, then he cannot adopt her child. The reason given in the text is that the adopted son must bear the resemblance of a son. This recalls the dictum of the Roman law—adoptio naturam imitatur. The adopted son and the adopting father must be of the same caste. The period fixed for adoption by the three higher castes is before the ceremony of upandyana, or investiture of the child with the thread which these castes always wear over the left shoulder. For Sudras, who have no thread, the period is prior to the marriage of the child. There has been much difference of opinion as to whether an only son can be given and received in adoption. It is now settled that the texts which discountenance this adoption do not constitute a prohibition which the law will enforce.

There is sometimes a difficulty in ascertaining whether or no an adoption has actually taken place. There must be a final giving and receiving of the child in adoption, and for Sudras nothing more is required. For the twice-born classes it is not finally settled whether any religious ceremony is actually necessary in order to render the adoption valid. But some religious ceremony in almost all cases accompanies the adoption, so that the absence of any such ceremony will always raise a suspicion that the adoption, though it may have been contemplated and some steps taken towards it, had not been finally completed. If an adoption were in itself invalid, no acquiescence and no lapse of time could make it valid—just as an invalid marriage could not be similarly validated. But acquiescence by the family would be strong evidence of the validity of an adoption, and the rules of limitation by barring any suit in which the question could be raised might render the adoption practically unassailable.

The kritrima adoption is altogether different; although the adopted son performs the ceremonies for his adopting father’s family, and has a right to succeed, he is nevertheless not cut off from his own family. A person of any age may be adopted, and he must be old enough to be able to consent to the adoption, as without this consent it cannot take place. In this form a female can adopt, and no ceremonies are required.

Authorities.Hindu Law: J. D. Mayne, Hindu Law (London, 1892); Colebrooke’s Treatises on the Hindu Law of Inheritance (Calcutta, 1810); Stokes’s Hindu Law Books (Madras, 1865); West and Buhler, A Digest of the Hindu Law of Inheritance (Bombay, 1878); Jogendra Nath Bhattacharya, A Commentary on Hindu Law (Calcutta, 1894); Rajkumar Sarvadhikari, Principles of the Hindu Law of Inheritance (Calcutta, 1882); Gooroodass Banerjee, The Hindu Law of Marriage and Stridhana (Calcutta, 1896); Jogendra Chundar, Principles of Hindu Law (Calcutta, 1906).

5. Mahommedan Law.—The Mahommedan law is always spoken of by Mahommedans as a sacred law, and as contained in the Koran. But the Koran itself could not have supplied the wants even of the comparatively rude tribes to whom it was first addressed. Still less has it proved sufficient to satisfy the requirements of successive generations. No doubt the great veneration which Mahommedans have for the Koran has caused them to be less progressive than members of other religious creeds. But in human affairs some change is inevitable, and the law of the Koran, like other sacred laws, has had to undergo the supplementary and transforming influence of custom and interpretation, though not of legislation. This direct method of changing the law by human agency, natural and simple as it appears to us, is scarcely acknowledged by Orientals even in the present day, except in the rare instances in which it has been forced upon them by Western authority. But besides custom and interpretation, another influence of a special kind has been brought to bear upon Mahommedan law. Besides those utterances which the Prophet himself announced as the inspired message of God, whatever he was supposed to have said and whatever he was supposed to have done have been relied upon as furnishing a rule for guidance. This tradition (sunna) is only to be accepted if it can be traced up to a narrator at first hand, though it would be rash to say that the chain of evidence is always very strong. Mahommedans also, in support of a legal rule for which there is no direct authority, resort to the argument from analogy (kiyas). The principle involved in a rule for which authority can be quoted is extended so as to cover other analogous cases. There have also been accepted amongst Mahommedans, as authoritative, certain opinions on points of law delivered by those who were actual companions of the Prophet; these opinions are spoken of collectively under the name of ijma. Some of these methods of extending and modifying the law have produced changes which it would be very difficult to reconcile with a strict adherence to the language of the Koran (see the Introduction to the Corps de Droit Ottoman, by George Young; Oxford, 1905). The Mahommedans of India generally are Sunnites of the Hanafite school. The two principal authorities on Mahommedan law to which recourse is had by the courts in India are the Hedaya and the Futwa Alumgiri. The Hedaya was translated into English by Mr Hamilton. The Futwa Alumgiri was compiled under the orders of the emperor Aurungzib Alumgir. It is a collection of the opinions of learned Mahommedans on points of law. It has not been translated, but it forms the basis of the Digest of Mahommedan Law compiled by Neil Baillie. The Mahommedan law, like the Hindu law, is a personal law. It is essentially so in its nature. Persons of any other religion are to a large extent outside its pale. And in India, in civil matters, its application has been expressly limited to Mahommedans. At one time endeavour was made to administer the Mahommedan criminal law as the general territorial law of India, but it had constantly to be amended, and it was at length abolished and the penal code substituted. To be a Mahommedan, and so to claim to be governed by the Mahommedan law, it is necessary to profess the Mahommedan faith.

All that we find on the subject of intestate succession in the Koran are certain directions as to the shares which certain members of the family are to take in the estate of their deceased relative. So far as they go, these are Intestate succession. rules of distribution—that is to say, they depend, not on consanguinity only, but on certain equitable considerations, by which rules founded on consanguinity are modified. But these latter rules, though nowhere laid down in the Koran, still play a large part in Mahommedan law. There can be no doubt that they represent the pre-existing Arabian custom, which it was not the intention of the Prophet to displace, but only to modify. The claimants under these rules take whatever is left after the specific shares assigned by the Koran to individual members of the family have been satisfied; if in any case there are no such shares, they take the whole. The Arabic term for this class of heirs is asabah, which literally means persons connected by a ligament. The term used by English writers is “residuaries,” but this description of them has the disadvantage that it entirely loses sight of the connexion on which the claim to succeed is based. They would be more correctly described as the “agnates” of the deceased, but the term “residuaries” is too firmly established to be displaced. Those persons who take a share of the property, under the specific rules laid down in the Koran, we call “sharers,” and this word has acquired a technical meaning; it is not used to describe those who can claim a portion of the