Bench:

B.H. Marlapalle

Issue:

Whether Provision of Section 11, Hindu adoption and Maintenance Act requiring age difference between adoptive mother and adoptive son to be at least 21 years is mandatory in nature?

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Facts:

• The appellant is son of LaxmanSalunke and brother of Shankar Salunke.

• Shankar was married to Parvatibai and he was in service at Aurangabad.

• Parvatibai left Shankar in a year or two after her marriage with Shankar and never returned. She continued to stay at her native village.

• On the death of Shankar who is the brother of the appellant and Laxman who is the father of the appellant, Parvatibai filed for succession certificate and the same was decided in her favour.

• Parvatibai died in an accident.

• The present respondent then appeared and filed his written statement contending that he was taken in adoption by Parvatibaiand since Parvatibai had obtained succession certificate, he should be the successor to the movable and immovable property.

• The trial court held that the adoption of respondent by Parvatibai was legal and valid and therefore, the appellant has filed for an appeal.

Appellant's contention:

The counsel for the appellant contented that alleged adoption of the respondent byParvatibai was illegal and void ab-initio as the mandatory requirements were not met.

Respondent's arguments:

The counsel for the respondent relied on the case of Kondiba Rama Papal v. Narayan KondiaPapal, (AIR1991SC1180) in which it was held that an adoption is not invalid although it took place after the thread ceremony of the boy was performed. Thus, the custom is judicially recognised in the Bombay State as regards toadoption of a child at any age. Once the custom is judicially recognised, it is not required to be independently proved in subsequent cases.And therefore, the counsel of the respondents argued that since the adoption was proved as valid in the lower courts, it does not have to be proved again. Further, the counsel stated that the word ‘must’ mentioned in the provision can be read as ‘may’.

Judgement:

The court held that the age difference between adoptive mother and adoptive son to be at least 21 years is mandatory in nature. Further, it was held that the word ‘must’ cannot be read as ‘may’ as stated by the counsel for respondent. This breach would be fatal to adoption and the adoption would render invalid and illegal.

And therefore, the adoption of respondent by Parvatibai was void as the mandatory criterion under sections4, 5, 10 and 11 of the Hindu adoption and Maintenance Act were not followed and complied.

The orders passed by the courts below were quashed and set aside.

Relevant Paragraphs:

"The opening sentence of Section 11 of the Hindu Adoption and Maintenance Act states that the conditions set out in Clauses (i) to (vi) must be complied with in every adoption.No other meaning can be assigned to the words 'must be complied with'. Therefore, this is not a merely directory provision but something which is mandatory and the violation whereof results in the invalidity of the adoption'."[1]

[1] Paragraph 12, HanmantLaxmanSalunke (D) by L.Rs. v. Shrirang Narayan Kanse, AIR 2006 Bom 123