1. That the late Narasinga Rao's widow, Sesham-mal, did in fact adopt the respondent as the son of her husband was practically admitted on behalf of the appellants, the first of whom is Narasinga Rao's undivided nephew and the second that of appellant's son--a minor. It was, however, contended on their behalf that Narasinga Rao did not authorize Seshammal to make the adoption and even if it is found that he did so authorize her the adoption is invalid in consequence of the relationship which existed between Narasinga Rao and the natural mother of the respondent.
Then the learned Judges discussed the evidence as to the question whether authority was or was not given by the deceased and concurred in the finding of the Lower Court that authority was given.
2. Next as to the validity of the adoption, so far as we were able to follow the appellant's Vakil's arguments on the point, the chief contention was this:
The respondent's natural mother, being Sesbammal's sister's daughter, could not under the Hindu Law have been lawfully married to Narasinga Rao and, therefore, the respondent could not have been validly adopted as his son. It being the settled law of this Court, except where there is evidence of special usage to the contrary, that the natural mother of the boy to be adopted, should be a person, who, in her maiden state, might lawfully have been married to the man for whom the adoption is to be made, the question for determination is whether a Hindu is, by law, precluded, as the appellants contend, from marrying his wife's sister's Appeal against the decree of the District Court of North Arcot in O.S. No. 41 of 1893. daughter. In support of this contention we were not referred to any text either in the Smnbis or in the leading commentaries. The only text, to which our attention was drawn on behalf of the appellants, is to be found in Aswalayana's Orihya Parisishta which runs thus:Viruddha Sambandha relation which is Viruddha (contrary or improper) owing to the relationship (existing) between the bride and the bridegroom (before the marriage) being similar to that of a father or a mother, as for instance the daughter of a wife's sister (and) the sister of the paternal uncle's wife.' (Mandlik's Hindu Law, p. 4.84.) A glance at the numerous rules, laid down by the ancient Hindu legislators with reference to the selection of a bride, is enough to show that they are with very few exceptions, mere rules of caution and advice. Now does the passage, relied on by the appellant, belong to this class of hortatory texts or does it lay down a rule of law rendering a marriage contrary to it unlawful? That it belongs to the former class is evident from the fact that none of the well known authoritative commentaries prohibit the marriage of a wife's sister's daughter, a fact which by itself is sufficient 'to render it the duty of the Courts to decline to accept the text in question as laying down an imperative rule. Nor is authority wanting to support this view. In Kulluka Bhatta's remarks on Manu III, 6 to 11, referring to the numerous minor objections to be avoided in selecting a bride, the commentator in terms points out. that a violation of none of the rules contained in them affects the legality of the union. (Gurudass Bannerjee's 'Marriage and Stridhanam,' p. 68). But in his comments on verse 5 of the same chapter, which deals with the really forbidden marriages between sagotras and sapindas, he observes thus :--'In the matter of marriage, as it has been ordained in this text, he who inadvertently marries a girl sprung from the same original stock with himself (sagotra) and so forth, must support her as a mother,' and as it has been said (by certain legislators) that if girls of the same gotra and so forth be taken in marriage they must be deserted and that penance must be performed if a marriage be contracted with a girl of the same gotra, consequently, together with those, the girls related as mother's sapindas do not also become wives.' (Vyavastha Ohandrika,.'Vol. II, p. 475.) These observations clearly lead to the inference that marriages are to be held to be unlawful only in cases, as to which desertion of the girl and the observance of penance for atoning the offence committed in entering into the prohibited alliance are laid down by accepted authorities. But it is not pretended that any authority prescribes that if a man marries his wife's sister's daughter he must abandon her and perform penance. Further, nearly all the recent important text writers who have considered the matter are. agreed that a marriage between a man and his wife's niece is valid.
3. Dr. Gurudass Bannerjee in his work on ''Marriage and Stridha-nam' already cited, states that the law 'does not prohibit marriage with the wife's sister or even with her niece or her aunt' (page 69); Syama Cham Sirkar in the note to Vyavastha 712 of the Vyavastha Chandrika wherein he states the substance of the authorities as to void marriages, excludes from that category unions such as those described by him in Vyavastha 698, inclusive of that be tween a man and his wife's sister's daughter. Vol. II, (pp.475 and 463). Mr. Mandlik in his edition of Vycuvahara Mayukha and Yajna-valkya, observes 'as regards Virudha Sambandha they are permitted as a matter of course.' (Appendix p. 415). Golap Chun-der Sirkar in his work on ' The Hindu Law of Adoption' expresses himself thus : ' But be it specially noticed that no marriage is invalid on the ground of relationship being incongruous. In addition to the two instances mentioned in Ghrihya Parisishta of Aswalayana there are other passages prohibiting on the selfsame ground the marriage by a man of his step-mother's sister, her brother's daughter and his children's daughter as well as the preceptor's daughter; but however improper such marriages may be they are nevertheless valid. Such marriages are generally contracted by high class Brahmins of Bengal who are compelled by the restrictions imposed by Kulinism to choose their wives from a certain limited number of families' (p. 319). Lastly, Jogendra Nath Bhattaaharya expresses substantially the same views in his Commentaries on Hindu Law. He writes : ' A text of Boudhayana and a passage from Grihya Parisishta are cited in the Nirnaya Sindhu which exclude the following:
1. Step mother's sister and sister's daughter.
2. Paternal uncle's wife's sister.
3. Paternal uncle's wife's sister's daughter.
4. Wife's sister's daughter.
4. The texts which exclude these are neither cited nor com-mented upon by Raghunandana. In practice no hesitation is felt in this part of India in marrying paternal uncle's wife's sister. Marriage with step-mother's sister takes place some times in Bengal. Instances of marriages with wife's sister's daughter are also not altogethor unknown in Bengal, though Hindu sentiments are very strong against these marriages (2nd edition, p. 95).
5. With reference to this concluding observation of Mr. Bhatta-charya regarding the sentiments of the people as to the propriety of such marriages, it may perhaps be pointed out that there is little to indicate that these marriages are disapproved of by the members of any section of the community in this part of India. Be this however as it may, the unimpeachable evidence, adduced on behalf of the respondent, shows beyond the shadow of doubt that marriages between a man and his wife's sister's daughter are common among the various sections of the Brahmin community and are regarded by all as perfectly valid. It is necessary to refer to this evidence briefly. The specific instance of marriages spoken of. by the witnesses took place in various parts of the Presidency widely separated from each other, viz., the following 8 Districts :--Nellore, Madras, North Arcot, South Arcot, Tanjore, Trichinopoly, Coimba-tore and Madura. The Honourable Mr. N. Subba Rao,. belonging to the Madhwa sect--a vakil of this Court--stated that his own mother's sister was married to a person who had previously married that lady's maternal aunt. The witness also stated that his paternal grandfather, after the first wife's death, married that wife's sister's daughter and that the marriages spoken to by him took place long ago. These cases probably belong to the Nellore District., Mr. V.C. Desikachariar, an Aiyangar and a practitioner of this Court, residing in Madras, stated that his mother-in-law, who is his father-in-law's second wife, is the daughter of her husband's first wife's sister. The witness added that the late Mr. V. Shada-gopachariar, who was a very distinguished Vakil of this Court, had married the sister of his (Shadagopacherlu's) paternal uncle's wife and 'this took place long ago. Krisanasami Aiyar, a Smartha Brahmin of Chittoor, in North Arcot, deposed that his father married about twenty-five years ago as his second wife, the witness's aunt who was the sister of witness's mother. Rimchandraiyar, a Smartha Brahmin of Chidatnbaram in South Arcot, stated that his fourth and present wife is the daughter of his decease third wife's sister and that the marriage took place in 1888.' Ramakrishna Dikshatar another Smartha Brahmin also from South Areot, said that his second wife is his first wife's sister's daughter and that he was married 13 years ago. Mr. Govinda Rao, who is of the Madhwa sect and who is employed as Cirkil under the Collector of Tanjore, stated that he is married, to his deceased wife's sister's daughter, P. Srinivasachriar, an Aiyangar, also belonging to the same district, stated that he had married the sister of Dewan Bahadur Sri-nivasa Raghava Aiyangar, the present Dewan of Baroda, and that, when she died, he--the witness--married her sister's daughter. Mr. Srinivasa Rao, a Madhwa gentleman now in Bangalore, gave evidence to the effect that on the death of his first wife, the late Raja Sir T. Madhava Rao's daughter, the witness married her sister's daughter. Dewan Bahadur Raghoonatha Rao stated that, in addition to two instances already referred to, viz., those of Govinda Rao of Tanjore and Srinivasa Rao of Bangalore, who are both related to him, he knew many cases of a man marrying the niece of his wife. Rama-chariar, who is a Madhwa too, spoke to having been present at 7 or 8 such marriages either in the Trichinopoly, Coinbatore or Madura District and' added that, about 18 or 19 years ago, he himself married his deceased wife's sister's daughter. Krishna Rao, the District Munsif of Kulittalai, stated that a sister of his and a daughter of another of his sisters were successively married to the same man in Coimbatore. Nearly all the witnesses affirmed positively that no exception whatever was at any time taken to any of the marriages spoken to by them.
6. On the part of the appellants nothing has been really urged to rebut the irresistible inference arising from such widespread usage as that established by the evidence just noticed, in favour of the validity of the marriages which the test of Aswalayana condemns on the ground of incongruous relationship.
8. We have, therefore, no hesitation in holding that the said text is not mandatory and that the appellant's contention founded thereon is entirely unsustainable.
9. We think we are not precluded from arriving at this conclusion by the reference made to the above text in Minakshi v. Ramanatha ( ) I.L.R. 11 M. 49. It would seem on the strength of the statement in Dattaka-mimamsa that a marriage between the persons mentioned in the text in question was a prohibited connection, it was assumed by the Court that the text was mandatory. But whether the text was mandatory or merely hortatory was not a matter for determination in that suit, and therefore the Court's observations cannot be treated as a binding decision on the point.
10. The only other objection taken to the legality of the; adoption rested on the fact that the adoptive mother Seshammal is the cousin of the natural father of the respondent. But this contention also is untenable; since it has been ruled in this Court that the adoption of a son of even' a wife's brother is good. Srimmulu v. Ramayya ( ) I.L.R. 3 M. 15. It is scarcely necessary to say that it is immaterial in such a case whether the adoption is made by a man himself or by bis widow after his death; for the adoption is for him. We must therefore confirm the decree of the District fudge and dismiss the appeal with costs.