Strouthes D.P. Law and Politics: A Cross-Cultural Encyclopedia

The

following maps show approximate locations

of

the

cultures mentioned

in the

text.

xin

MAPS

Africa

and the

Middle East

1.

Amba

2.

Amhara

3.

Ashanti

4.

Barotse

5.

Bedouin

6.

Bunyoro

7.

Dinka

8.

Dogon

9.

Egypt

10.

Gusii

11.

Hausa

12.

Igbo

13.

Iraq

14.

!Kung

15.

Kuwait

16.

Lugbara

17.

Mandari

18.

Nuer

19.

Nyakyusa

20.

Nyamwezi

21.

Rundi

22.

Somali

23.

Sudan

24.

Sukuma

25.

Tallensi

26.

Tiv

27.

Tswana

28.

Wolof

29.

Yako

30.

Yoruba

31.

Zimbabwe

32.

Zulu

xiv

MAPS

Central

and

South America

1.

Inca

2.

Jivaro

3.

Tarascans

4.

Yaqui

5.

Yanomamo

xv

MAPS

Europe

and

Asia

1.

Burmese

2.

China

3.

Germany

4.

Greece

5.

Hungary

6.

India

7.

Japan

8.

Lolo

9.

Russia

10.

Sarakatsani

11.

Tibetans

12.

Tiroleans

xvi

MAPS

North America

1.

Cherokee

2.

Cheyenne

3.

Choctaw

4.

Cochiti

5.

Cree

6.

Crow

7.

Iroquois

8.

Micmac

9.

Naskapi

10.

Navajo

11.

Nunamiut

MAPS

Oceania

1.

Ifugao

2.

Kalinga

3.

Kaoka

4.

Kapauku

5.

Tairora

6.

Tikopia

7.

Tiwi

8.

Tongans

9.

Trobriands

10.

Vanuatu

xviii

Abandonment

occurs

when

helpless

people

are

left

to

fend

for

them-

selves.

In

many

societies,

it is a

criminal

offense,

because

leaders

and

authorities

want

the

people

within

the

society

to

take

care

of

each

other

rather

than

depend

upon

the

government

to do

so.

In

other

societies,

particularly

some

hunting

and

gathering

societies,

abandonment

is

consid-

ered

a

moral

rather

than

a

legal

matter.

While

it

is

a

crime

to

abandon

a

child

in the

United

States,

most

other

kinds

of

abandonment

are not

con-

sidered

criminal.

In the

Republic

of

China,

as

shown

below,

the law

makes

it a

crime

to

abandon

anyone,

and

increases

the

penalty

for

abandon-

ing

one's

ancestors

and

relatives

in the

genera-

tions

preceding

one

s

own.

This

law,

then,

reflects

the

Confucian

tradition

s

high

positive

value

on

helping

the

older

people

of

one's

family

(The

Law

Codification

Commission,

1919:102-103).

Chapter

XXV

Abandonment

Article

303.

Whoever abandons

a

help-

less person shall be punished with imprison-

ment

for a

period

of not

more than

one

year,

or

with

detention,

or

with

a

fine

of not

more

than three hundred yuan.

If the

commission

of the

offence

results

in

death,

the

offender

shall

be

punished with

imprisonment

for a

period

of not

more than

five

years;

if the

commission

of the

offence

results

in

grievous bodily harm,

the

offender

shall

be

punished with imprisonment

for a

period

of not

more than three years.

Article 304. Whoever being bound

by law

or

contract

to

support, mantain,

or

protect

any

helpless person abandons such person

or

fails

to

give

to

such person

the

support, mainte-

nance,

or

protection necessary

for

preserva-

tion

of

life,

shall

be

punished

in

accordance

with

the

provisions relating

to the

offence

of

intentionally causing bodily harm resulting

in

death

or in

grievous bodily harm.

Article

305.

Whoever

commits against

any

of his

lineal ascendants

the

offence

speci-

fied

in

paragraph

1 of the

last preceding

Ar-

ticle, shall

be

liable

to the

punishment prescribed

for

the

offence

increased

by

one-half.

Whoever

commits against

any of his

col-

lateral ascendants

the

offence

specified

in

para-

graph

1 of the

last preceding

Article,

shall

be

liable

to the

punishment prescribed

for the

offence

increased

by

one-third.

If the

commission

of the

offence

results

in

death

or

grievous bodily harm

to the

ascen-

dant,

the

offender

shall

be

punished

in

accor-

dance

with

the

provisions relating

to the

offence

of

intentionally causing bodily harm

to an

ascendant resulting

in

death

or

grievous

bodily harm.

The Law

Codification Commission.

(1919)

The

Criminal

Code

of

the

Republic

of

China

(Sec-

ond

Revised

Draft).

Acephalous

(or

"head-

less")

societies

are

those

that

have

no

common

government

that

rules

all

ACKNI

ALOl'S

SOC

11.1

IKS

ABANDONMENT

3

A

ADOPTION

of its

members.

The

term

was

first

used explic-

itly

by

anthropologists Meyer Fortes

and E. E.

Evans-Pritchard

to

refer

to

segmentary

lineage

societies.

In

these societies, lineage segments

united

when

the

need arose, such

as in

time

of

war or

feud,

but had no

formal

leaders

who

com-

manded

the

united segments.

Another type

of

society that

is

sometimes

called acephalous

is a

traditional indigenous

so-

ciety

that

had in the

past

its own

native political

and

legal structure

but

then lost

it to a

conquer-

ing

colonial power. Such examples

are

common

throughout

the

world. Here

the

term

acephalous

society

is a

misnomer.

What

happens when

the

conquering colonists destroy

a

native political

and

legal structure

is

that they replace

it

with

their

own or

with

one

that

is

compliant with their

interests. Colonists

do not

always want

to de-

stroy

a

native leadership

or

authority, although

they almost always wish

to

dominate

the

people

of the

society

for

their

own

purposes.

Thus,

though

a

band society

that

has

lost

its

headman

as

an

effective

leader

may

appear

on the

surface

to be

acephalous,

it is

actually

the

case

that

the

society

is

being

led by the

colonists

and its

legal

affairs

(or at

least

the

ones that

the

colonists care

about)

decided

by

colonial courts.

See

also

SEGMENTARY

LINEAGE.

Fortes, Meyer,

and E. E.

Evans-Pritchard, eds.

(1940)

African

Political

Systems.

ADOPTION

Adoption

refers

to the

dissolution

of the

legal

parent-offspring

rela-

tionship between parents

and

their natural

offspring

and the

creation

of the

legal parent-

offspring

relationship between that

offspring

and

someone

other than

his or her

natural parents.

As

such, adoption

is a

legal

fiction; the

relation-

ship between adoptive parent(s)

and

adopted

child

is not a

natural

or

biological one,

but

only

a

legal one.

The

reason

for

adoption

in

most societies

is

to

acquire

an

heir. People with some accumu-

lated

wealth

and

with

no

natural children

of

their

own

will adopt

a

child

so as to

have someone

to

inherit their wealth.

This

pattern

can be

seen

clearly

in

societies such

as the

Ifugao

of the

Phil-

ippines

and the

Micmac Indians

of

eastern

Canada. Among

the

Ifugao, adoption

is

prac-

ticed only

by the

wealthy. Among

the

Micmac,

adoption traditionally never existed,

and

exists

today

only very rarely. However,

foster

parent-

age is

quite common

and

functions

to

provide

for

the

care

of

children whose natural parents

are

incapable

of

caring

for

them. Adoption

is

not

practiced because there

is

virtually

no

wealth

to be

inherited,

and in the

past this

was

even

more true than

it is

today. Further,

foster

par-

entage

is

considered

sufficient

for the

proper

raising

of

another

couple's

child,

and the

idea

of

changing

the

name

and

identity

of the

foster

child,

in

order

to

adopt,

seems

alien

to

them.

The

following legal decision regards

an

adoption involving Brahmans,

the

highest caste

in

India,

and is

settled

according

to

Hindu

law

(The

Indian

Law

Reports,

Bombay

Series

y

1925:

515-520).

ADOPTION

APPELLATE CIVIL.

Before

Sir

Norman

Macleod y Kt.y Chief Justice,

and Mr.

Justice

Crump.

GOVINDPRASAD

LALITAPRASAD

MISHAR

(Original

Defendant

No. 1), Ap-

pellant

v.

RINDABAI

KIX

LALITA-

PRASAD

(Original

Plaintiff),

Respondent.

Hindu

law—Adoption—Datta

Homan—

Brahmins.

4

ADOPTION

The

ceremony

of

datta

homan

is

essential

to

validate

an

adoption amongst Brahmins

un-

less

the

adoptive father

and son

belong

to the

same

gtf/ra

[lineage].

First

appeal against

the

decision

of J. H.

Betigeri,

First

Class

Subordinate

Judge

of

Dharwar.

Suit

for

declaration

and

possession.

One

Lalitaprasad dies

in

1911,

leaving

a

widow,

Rindabai.

Lalitaprasad

was a

Karoj

Brahmin living

at

Morab,

in

Dharwar

District.

The

defendant

No.

1,

Govindprasad,

was

in

possession

of

Lalitaprasad

s

property

and

claimed

to

retain

it on the

ground that

he was

adopted

by

Rindabai

in

February

1913.

In

1919,

the

plaintiff, Rindabai, sued

for

a

declaration

that

Govindprasad

was not the

legally adopted

son of the

plaintiff's

husband;

that

datta

homan

and

adoption ceremony

had

never taken place.

The

Subordinate Judge held

that

the

fact

of

the

adoption

of

Govindprasad

was

proved,

but

that

the

adoption itself

was

invalid

as the

datta

homan ceremony

had not

been per-

formed,

that

ceremony being essential

in the

case

of

Kanoj

Brahmins governed

by the

Mitakashara law, where

the

adoptive

father

and

adopted

son

belonged

to

different

gofras.

His

observations were

as

follows:—

"Defendant

No. 1

admits

in

para.

5

of

Exhibit

69

that

his

gotra

in the

genitive

line

was

barha

and his

gotra

in the

adop-

tive line

was

upamanyu:

So the

question

to be

decided

in

this case

is

whether

datta

homan

ceremony

is

indispensable

or not

for

the

validity

of an

adoption when

the

gofras

of the

adopter

and the

adoptee

are

different,

i.e.,

bhmna.

On

behalf

of de-

fendant

No. 1, the

case

in

4

Mad.

H.C.R.,

page 165,

is

relied upon.

It

does

lay

down

that

in

order

to

establish

a

valid adop-

tion

in a

Brahmin

family,

proof

of the

performance

of the

datta homan

is not

essential.

But

from

the

facts

of

this case,

it

cannot

be

clearly made out, whether

adopter

and the

adoptee

in it

were

the

same

or of

different

gofras.

Further

the

correctness

of the

ruling

in the

above case

was

questioned

in

I.L.R.

7

Mad.,

page

548

wherein

the

Madras

High

Court

expressed

an

opinion that amongst Brah-

mins

the

ceremony

of

datta

homan

is an

essential element

of

adoption.

All the

High

Courts

are

agreed

that

where

the

adoptive father

and son

belong

to the

same

gotra

the

datta

homan

is not

neces-

sary,

vide

I.L.R.

11

Mad.,

page

5,

I.L.R.

6

All, page 276,

I.L.R.

24

Born.,

page

218,27

Indian Cases, page

39, and

I.L.R.

39

Born.,

page 441.

In the

judgment

of

the

case

in

I.L.R.

24

Born.,

page 218,

on

page

223 is

mentioned

an

unreported

decision

of the

Bombay

High

Court

de-

cided

in

1865

in

which

it was

held that

the

ceremony

of

datta

homan

was not es-

sential

to the

legal validity

of an

adop-

tion.

It is

stated there that

the

parties

in

the

said case belonged

to the

three

re-

generate classes.

So

that case might

be

one

amongst Brahmins

or

Kshatrias

or

Vaishyas.

Unless that case were shown

to be one

concerning Brahmins,

it

can-

not

help

the

present defendant

No. 1

since

it is

held

by the

Madras

High

Court

that

datta

homan

is not

necessary

for the

validity

of an

adoption among Kshatrias,

vide

I.L.R.

6

Mad.,

page

20.

Besides,

I

am

not

bound

to

follow

the

above unre-

ported case

in

view

of

section

3 of Act

XVII

of

1875.

In the

case

in 27

Indian

Cases, page

39, all the

Hindu texts

on

the

subject have been considered

and so

also

the

case

law

till

1914.

It is

noted

there that there

is a

great diversity

of

opinion amongst

the

text-writers

as

there

is

absence

of

uniformity

in the

judicial

decisions

of the

Indian Courts

on

this

point.

Finally

the

following observation

is

recorded:—

'In

this diversity

of

judi-

cial

opinion,

it

must concede that

the

principle

that

datta homan ceremony

is

essential

for the

validity

of an

adoption

among Brahmins,

still

counts

a

strong

body

of

supporters

and

that

the

rational-

istic view

has not yet

finally

triumphed

5

ADOPTION

over

formalism.'The

same judgment fur-

ther

observes:—

'Whether

the

rule (that

datta

homan

is

necessary among Brah-

mins)

itself will ultimately stand dis-

credited

and

disappear,

it is

needless

to

speculate

in

this instance (the

case

then

before

the

High

Court being

one in

which

the

adoptive father

and the son

were

of the

same

gotra)'

According

to

the

observations

to be

found

on

page

994

of

West

and

Buhler's Hindu Law,

4th

Edition,

datta

homan

appears essential

for

the

validity

of an

adoption among Brah-

mins,

where

the

adoptive father

and son

are

of

different

gotra.

In

this state

of the

authorities,

I am not

prepared

to

hold

that

the

time

has

come

to

discredit

and

discard

the

respectable body

of

Hindu

opinion,

in

texts

and in

decided cases,

which lays down

the

datta

homan

is an

indispensable

requisite

for a

valid adop-

tion between persons

of

different

gotras.

I am,

therefore, constrained

to

find

that

the

adoption

of

defendant

No. 1 is not

valid, though

in

fact

it

took place."

The

Subordinate Judge, therefore, passed

a

decree

in

favor

of the

plaintiff declaring

the

adoption invalid

and

awarding possession

of

the

property.

The

defendant

No. 1

appealed

to the

High

Court.

A.

G.

Desai,

for the

appellant.

Coyajee,

with

R.

A.Jahagirdar,

for the re-

spondent.

MACLEOD,

C.

J.:—The

plaintiff sued

to

obtain

a

declaration

that

the

first

defen-

dant

was not the

legally adopted

son of the

plaintiff's

husband.

The

plaintiff disputed

the

factum

of the

adoption.

That

issue

was

found

in

the

affirmative,

but on the

issue

of

whether

the

adoption

was

valid,

the

Court held

that

the

adoption

was not

valid though

in

fact

it

had

been made, because

the

adoptive father

and

the

adopted

son

were

of

different

gotra.

Consequently

the

datta

homan

was

essential

to

validate

the

adoption,

and in

this

case

it is

not

disputed that

the

datta

homan

had not

been

performed.

If we

were

of

opinion that

the

adoption

was

valid,

it

would have been neces-

sary

to

consider

the

authorities

at

some length.

But

we

agree with

the

judgment

in the

Court

below that

in

this particular

case

the

datta

homan

was

necessary.

The

authorities

are

considered

in the

lat-

est

Edition

of

Mayne

at pp.

205-208,

and at

the

bottom

of

page

207 the

conclusion

is as

follows:

"So far as it is

possible

to

reconcile

these conflicting decisions, they seem

to

point

to the

conclusion that, among

the

twice-born

classes,

the

datta

homan

is

necessary,

unless

the

adopted

boy is of the

samegfl/ra

as his

adopter,

or

unless

a

usage

to the

contrary

can be

estab-

lished".

In

Mahashoya

Shosinath

Ghose

v.

Srimati

Krishna

SoondariDasi

their Lordships

observed:—

"The mode

of

giving

and

taking

a

child

in

adoption continues

to

stand

on

Hindu

law and on

Hindu usage,

and it is

perfectly

clear

that

amongst

the

twice

born

classes

there could have been such

adoption

by

deed, because certain

reli-

gious ceremonies,

the

datta homan

in

particular,

are in

their

case

requisite."

The

question

in

issue

in

that

appeal

was

whether there could

be in the

case

of

Sudras

such

a

giving

and

taking

as was

necessary

to

satisfy

the

law,

by

mere deed,

without

an ac-

tual delivery

of the

child

by the

father.

Still

this dictum

of

their Lordships

may be

taken

as

stating what their Lordships considered

at

that

time

was

necessary

to

validate

an

adop-

tion

amongst

the

twice-born classes.

In

this

Presidency

at any

rate

the

only

cases

in

which

an

adoption

has

been

recog-

nized

as

valid without

the

datta homan

being

performed

have been those

in

which

the

adop-

tive

father

and the

adopted

son

belonged

to

the

samegfl/ra.

All the

authorities

on

this sub-

ject

are

discussed

in

Valnbai

v.

Gorind

Kushinath,

and in

Eal

Gangadhar

Tilak

v.

6

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