There was a great divergence of opinion as regards the powers of a widow to make an adoption to her husband.
The subject is governed by a text of Vasishtha according to which a woman should not give or take in adoption except with the assent of her husband. This text has yielded four meanings to the mediaeval pundits:
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(1) Mithila View:
ADVERTISEMENTS:
The assent of the husband is required according to Vachaspati Misra at the time of adoption. Obviously a widow cannot get such consent since her husband is dead. So according to the Mithila School a widow cannot make an adoption.
(2) Maharashtra School:
According to Vyavahara Mayuka and Dharma Sindhu, which prevail in the Bombay School, Vasishtha’s text refers only to a woman whose husband is alive. So a widow governed by this school can adopt and no one’s permission is necessary for this purpose.
(3) Bengal School and Benaras School:
The assent of the husband is necessary but it may be given during his lifetime for an adoption to be made after his death. So a widow governed by this school can adopt only if she had prior to her husband’s death secured his express authorisation for the adoption.
(4) Madras School:
According to the view prevailing in the Dakshina or Madras School, a widow may adopt if she had obtained the husband’s authority prior to his death. Further even in the absence of such authority she may adopt provided she secures authority from the husband’s nearest Sapindas. Vasishtha’s text is treated as illustrative and not taken literal in this school.
ADVERTISEMENTS:
The authority to adopt should be strictly followed. A authorised his wife who was then pregnant to adopt a boy “in case the son that might be born dies”. A dies and after his death the widow is delivered of a female child who also died. The widow then adopted a boy.
The authority granted contemplates the birth of a son and his death. This contingency has not happened. So the power of adoption cannot be exercised in the events which have actually taken place. Mohendralal v. Rookiny Dabee, 1864 (1) Coryton 42. An authority to adopt is to be pursued strictly. Thus if the authority is for an adoption to be made within a specified time limit, and adoption after that time would be invalid: Mutasaddi v. Kundan Lai, 1928 All. 377 (PC).