Under the old law the following rules were in vogue regarding the person who could be adopted;
(1) Must be a Hindu:
The person to be adopted must be a Hindu.
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(2) Must be a Male:
The person must be a male.
ADVERTISEMENTS:
According to a decision of Madras High Court, the adoption of the daughter by a naikil e.g., dancing girl was valid provided the adoption was not made with the object of disposing of the girl for the purposes of prostitution, but according to Bombay and Calcutta High Courts such an adoption was invalid notwithstanding a custom, and such custom was regarded as immoral.
(3) Nearest Sapinda:
According to Dattaka Mimansa and ‘Duttaka Chandrika’ the nearest male sapinda was to be preferred to any other person if suitable in other respects. If no such near sapinda was available then one who was less remote or one who was of a family which followed the same spritual preceptor would be adopted.
(4) Identity of Caste:
The adopted son must be of the same caste as that of his adopting father. The Saunaka Smriti prohibited adoption outside the caste. Dattaka Chandrika also prohibited such adoption and, therefore, such adoption was regarded as invalid. But adoption of a person from a sub-caste of the same primary caste was valid.
(5) Deaf and Dumb:
ADVERTISEMENTS:
The person adopted must not be deaf and dumb.
(6) Orphan:
An orphan could not be validly adopted in the absence of a custom to the contrary.
(7) Only Son:
Saunaka says “By the father of an only son the gift of a son should never be made.” It was a clear injunction of Vashistha: “Let no man give or accept an only son as he must remain for the obsequies of his ancestors.” The Mitakshara confirmed the same view but the Privy Council regarded the adoption of an only son as valid and the rule existing before the decisions as a moral precept.
(8) Eldest Son:
There was a general prohibition with respect to adoption of the eldest son, as the eldest son alone was regarded to fulfil the office of son but the Privy Council later held that the adoption of the eldest son was valid.
(9) Son Already Adopted:
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A person who has been adopted could not be given in adoption further, for, the gift in adoption could only be made by one’s own natural father or mother.
(10) Illegitimate Son:
An illegitimate son could not be validly adopted even among Shudras as illegitimate son was regarded as incapable of performing the funeral ceremonies, etc.
(11) Joint adoption of a single person:
Two persons cannot make adoption of a single boy even if they are real brothers. The adoption of a single boy by two persons, would be invalid.
(12) Prohibition of Certain Relations in Adoption:
According to a text of Saunaka, the boy to be adopted must bear the resemblance of a son. This rule excluded the adoption of a son of a woman whose original relationship with the adopter was such as to render her unfit to be his wife. In other words, no one could be adopted whose mother in her maidenhood could not have been legally married with the adopter.
This rule was founded upon the fiction “that the adopting father has be-gotten the boy upon his natural mother, therefore it is necessary that she should be a person who might lawfully have been his wife.” Thus a man could not adopt his daughter’s son, sister’s son or mother’s sister’s son for he could not marry his daughter, or sister or mother’s sister. Such prohibition was also contained in Dattaka Chandrika, Dattaka Mimansa, Sankara Kaustubh and Dattaka Nimaya.
This rule is called as the doctrine of ‘Virudha Sambandha’. The marriage rule was not recommendatory and the doctrine of factum valet was not applicable, if it was not observed, and the adoption in contravention of this rule was held to be invalid. But in Bombay, this rule was confined to the specific cases of the daughter’s son and mother’s sister’s son and did not extend to other relations. This rule did not apply to Shudras. The rule had an exception with respect to even three upper classes if sanctioned by customs.