152 THE LAW OF ADOPTION, HISTORICALLY CONSIDERED.
Lecture general grounds, it must seem strange that the illegitimate
son. of a young woman should be made over to one who
may not even have known her at the time when the child
was born. It is possible, therefore, that Nandapandita* 1
may be right in restricting this rule to the case of a
woman who at the time when the child was born had
been engaged already to the man who afterwards became
her husband and the adoptive father of her illegitimate
child ; in every other case, the child shall belong to the
maternal grandfather.
Niyoga. The case of the Kshetraja, or son of the wife, who is
generally mentioned as the second or third in the order
of sons2 offers a peculiar interest. In the early Vedic
Schools, and even in the time of the Commentators, the
rules regarding the Kshetraja have been the subject of
much lively discussion, the results of which are visible
in the Treatises on Adoption. This discussion has been
taken up quite recently, though from a different standpoint,
by a number of European writers, who have left no corner
unexplored in Sanskrit Literature with a view to discover
in it new evidence in favour of their favourite theories
regarding the polyandry and communal marriage of prime-
val times. Before entering on a discussion of these theo-
ries, I must briefly state the facts of the case. The practice,
on which the rights of the son of the wife are founded, is
generally referred to by the name of Niyoga or Niyoga-
dharma in the law-books. Now Niyoga means order,
commission, and this order or commission in -which the
whole practice centres was to the effect that a brother or
other near kinsman (Sapinda), or on failure of such, any
member of the highest or'Brahman caste was to beget a
son and heir to one either deceased without leaving male
issue, or alive but incapable of begetting legitimate male
issue.3 A strict line of conduct was prescribed both for
the appointed man and woman during the time of their
intercourse, and it was to be stopped when a child had
been conceived, the express object of all these rules being
o
1 Vaijayanti XV. 11-12.
2 Bribaspati seems to name him as the eighth kind of son. Digest V.
6. ccii ; Vaijayanti. &o. But Kamalii.kara has a different reading of the
same text, under which he is mentioned as the third son.
3 Gautama XVIII. 4—14 : XXVIII. 22, 23 ; Vasishtha XVII. 14. 55—66 ;
Baudhayaua II. 2. 4, 7. 10 : II. 2, 3. 17 ; Vishnu XV. 3; Manu IX. 56—63,
143 — 147, 161 — 167 ; Yajnavalkya II. 127-128 ; Narada XII. 80—88, etc.
Lecture general grounds, it must seem strange that the illegitimate
son. of a young woman should be made over to one who
may not even have known her at the time when the child
was born. It is possible, therefore, that Nandapandita* 1
may be right in restricting this rule to the case of a
woman who at the time when the child was born had
been engaged already to the man who afterwards became
her husband and the adoptive father of her illegitimate
child ; in every other case, the child shall belong to the
maternal grandfather.
Niyoga. The case of the Kshetraja, or son of the wife, who is
generally mentioned as the second or third in the order
of sons2 offers a peculiar interest. In the early Vedic
Schools, and even in the time of the Commentators, the
rules regarding the Kshetraja have been the subject of
much lively discussion, the results of which are visible
in the Treatises on Adoption. This discussion has been
taken up quite recently, though from a different standpoint,
by a number of European writers, who have left no corner
unexplored in Sanskrit Literature with a view to discover
in it new evidence in favour of their favourite theories
regarding the polyandry and communal marriage of prime-
val times. Before entering on a discussion of these theo-
ries, I must briefly state the facts of the case. The practice,
on which the rights of the son of the wife are founded, is
generally referred to by the name of Niyoga or Niyoga-
dharma in the law-books. Now Niyoga means order,
commission, and this order or commission in -which the
whole practice centres was to the effect that a brother or
other near kinsman (Sapinda), or on failure of such, any
member of the highest or'Brahman caste was to beget a
son and heir to one either deceased without leaving male
issue, or alive but incapable of begetting legitimate male
issue.3 A strict line of conduct was prescribed both for
the appointed man and woman during the time of their
intercourse, and it was to be stopped when a child had
been conceived, the express object of all these rules being
o
1 Vaijayanti XV. 11-12.
2 Bribaspati seems to name him as the eighth kind of son. Digest V.
6. ccii ; Vaijayanti. &o. But Kamalii.kara has a different reading of the
same text, under which he is mentioned as the third son.
3 Gautama XVIII. 4—14 : XXVIII. 22, 23 ; Vasishtha XVII. 14. 55—66 ;
Baudhayaua II. 2. 4, 7. 10 : II. 2, 3. 17 ; Vishnu XV. 3; Manu IX. 56—63,
143 — 147, 161 — 167 ; Yajnavalkya II. 127-128 ; Narada XII. 80—88, etc.