There are certain peculiarities in the relation of father and son in
India which have given rise to the suggestion that there is no
relationship between sonship and marriage, and that the notion of
sonship in India is founded entirely on that of ownership--ownership of
the mother and a consequent ownership of the child. But the arguments by
which this view is supported do not appear to be sufficient. The rights
of a father over his son, and of a husband over his wife are, it is
true, so far like the rights of ownership that both are in the nature of
rights _in rem_--that is, they are available against any person who
infringes them; but it is contrary to established usage to speak of
rights over a free person as rights of ownership, and no one is prepared
to say that the wife or child are slaves of the father. There is no
reason for abandoning in India the ordinary view, that sonship depends
on marital cohabitation between the father and mother. There are
undoubtedly in certain special and exceptional cases methods of
acquiring sons otherwise than by marital cohabitation. But these
contrivances can only be resorted to when there is no son by marriage,
and the fiction which, as we shall see, is resorted to to conceal the
true nature of these contrivances, would be entirely meaningless, as
would most of the rules which regulate them, if sonship in general was
based entirely on ownership. There were at one time more contrivances
than there are now for supplying the want of male issue by marriage. At
one time a son could be begotten for a man who was dead by cohabitation
of his widow with a member of his family or perhaps even with a
stranger. This is generally looked upon as a survival of polyandry. But
this practice, though alluded to in the Laws of Manu as still
subsisting, is now entirely obsolete. So there was a custom at one time
by which a father could appoint a daughter to raise up male issue for
him. The head of the family could also, if he had no son born in
wedlock, accept as his own any child born in his house whose mother was
not known or not married. So he could accept as his own the son of his
wife born before marriage, or the son of his concubine. In the last
three cases he may have been, and probably was, himself the father. But
none of these contrivances for procuring a son is now in use. The only
contrivance now employed for procuring a son, in the absence of one born
in wedlock, is by taking into the family the son of another man who is
willing to part with him. This is called adoption. There are two kinds
of adopted sons: one called dattaka and the other kritrima. The former
is in use all over India; the latter only in Mithila. The following
rules apply to the dattaka born of adoption: A man can only adopt who is
without issue capable of inheriting his property, of performing the
funeral ceremonies for himself, and of making the necessary offerings to
his ancestors. A woman cannot adopt. But by the authority of her
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