Court : SC
Brief : The present appeal involves a very simple issue but when
the background facts are considered it projects some highly
emotional and sensitive aspects of human life.
Citation : -
CASE NO.:
Appeal (civil) 7764 of 2001
PETITIONER:
Brijendra Singh
RESPONDENT:
State of M.P. & Anr.
DATE OF JUDGMENT: 11/01/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
The present appeal involves a very simple issue but when
the background facts are considered it projects some highly
emotional and sensitive aspects of human life.
Challenge in this appeal is to the judgment of the
Madhya Pradesh High Court at Jabalpur in a Second Appeal
under Section 100 of the Code of Civil Procedure, 1908 (in
short the \021C.P.C.\022).
Background facts sans unnecessary details are as
follows:
Sometime in 1948, one Mishri Bai, a crippled lady having
practically no legs was given in marriage to one Padam Singh.
The aforesaid marriage appears to have been solemnized
because under the village custom, it was imperative for a
virgin girl to get married. Evidence on record shows that
Padam Singh had left Mishri Bai soon after the marriage and
since then she was living with her parents at Village Kolinja.
Seeing her plight, her parents had given her a piece of land
measuring 32 acres out of their agricultural holdings for her
maintenance. In 1970, Mishri Bai claims to have adopted
appellant Brajendra Singh. Padam Singh died in the year
1974. The Sub-Divisional Officer, Vidisha served a notice on
Mishri Bai under Section 10 of the M.P. Ceiling on Agricultural
Holdings Act, 1960 (in short the \021Ceiling Act\022) indicating that
her holding of agricultural land was more than the prescribed
limit. Mishri Bai filed a reply contended that Brajendra Singh
is her adopted son and both of them constituted a Joint family
and therefore are entitled to retain 54 acres of land. On
28.12.1981, the Sub Divisional officer by order dated
27.12.1981 disbelieved the claim of adoption on the ground
inter alia that in the entries in educational institutions
adoptive father\022s name was not recorded. On 10.1.1982,
Mishri Bai filed Civil Suit No. SA/82 seeking a declaration that
Brajendra Singh is her adopted son. On 19.7.1989, she
executed a registered will bequeathing all her properties in
favour of Brajendra Singh. Shortly thereafter, she breathed
her last on 8.11.1989. The trial court by judgment and order
dated 3.9.1993 decreed the suit of Mishri Bai. The same was
challenged by the State. The first appellate court dismissed the
appeal and affirmed the judgment and decree of the trial
court. It was held concurring with the view of the trial court
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that Mishri Bai had taken Brajendra Singh in adoption and in
the will executed by Mishri Bai the factum of adoption has
been mentioned. Respondents filed Second Appeal No. 482 of
1996 before the High Court. A point was raised that the
adoption was not valid in the absence of the consent of Mishri
Bai\022s husband. The High Court allowed the appeal holding
that in view of Section 8(c) of Hindu Adoption and
Maintenance Act, 1956 (in short the \021Act\022) stipulated that so
far as a female Hindu is concerned, only those falling within
the enumerated categories can adopt a son.
The High Court noted that there was a great deal of
difference between a female Hindu who is divorced and who is
leading life like a divorced woman. Accordingly the High Court
held that the claimed adoption is not an adoption and had no
sanctity in law. The suit filed by Mishri Bai was to be
dismissed.
In support of the appeal learned counsel for the appellant
submitted that as the factual position which is almost
undisputed goes to show, there was in fact no consummation
of marriage as the parties were living separately for a very long
period practically from the date of marriage. That being so, an
inference that Mishri Bai ceased to be a married woman, has
been rightly recorded by the trial court and the first appellate
court. It was also pointed out that the question of law framed
proceeded on a wrong footing as if the consent of husband was
necessary. There was no such stipulation in law. It is
contented that the question as was considered by the High
Court was not specifically dealt with by the trial court or the
first appellate court. Strong reliance has been placed on a
decision of this Court in Jolly Das (Smt.) Alias Moulick v.
Tapan Ranjan Das [1994(4) SCC 363] to highlight the concept
of \023Sham Marriage\024.
It was also submitted that the case of invalid adoption
was specifically urged and taken note of by the trial court.
Nevertheless the trial court analysed the material and evidence
on record and came to the conclusion that Mishri Bai was
living like a divorced woman.
Learned counsel for the respondents on the other hand
submitted that admittedly Mishri Bai did not fall into any of
the enumerated categories contained in Section 8 of the Act
and therefore, she could not have validly taken Brajendra
Singh in adoption.
It is to be noted that in the suit there was no declaration
sought for by Mishri Bai either to the effect that she was not
married or that the marriage was sham or that there was any
divorce. The stand was that Mishri Bai and her husband
were living separately for very long period.
Section 8 of the Act reads as follows:
\0238. Capacity of a female Hindu to take in
adoption \026 Any female Hindu \026
(a) who is of sound mind,
(b) who is not minor, and
(c) who is not married, or if married,
whose marriage has been dissolved or whose
husband is dead or has completely and finally
renounced the world or has ceased to be a
Hindu or has been declared by a court of
competent jurisdiction to be of unsound mind,
has capacity to take a son or daughter in
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adoption.\024
We are concerned in the present case with clause (c) of
Section 8. The Section brings about a very important and far
reaching change in the law of adoption as used to apply earlier
in case of Hindus. It is now permissible for a female Hindu
who is of sound mind and has completed the age of 18 years
to take a son or daughter in adoption to herself in her own
right provided that (a) she is not married; (b) or is a widow; (c)
or is a divorcee or after marriage her husband has finally
renounced the world or is ceased to be a Hindu or has been
declared to be of unsound mind by a court having jurisdiction
to pass a declaratory decree to that effect. It follows from
Clause (c) of Section 8 that Hindu wife cannot adopt a son or
daughter to herself even with the consent of her husband
because the Section expressly provides for cases in which she
can adopt a son or daughter to herself during the life time of
the husband. She can only make an adoption in the cases
indicated in clause (c). It is important to note that Section 6(1)
of the Act requires that the person who wants to adopt a son
or a daughter must have the capacity and also the right to
take in adoption. Section 8 speaks of what is described as
\021capacity\022. Section 11 which lays down the condition for a
valid adoption requires that in case of adoption of a son, the
mother by whom the adoption is made must not have a Hindu
son or son\022s son or grand son by legitimate blood relationship
or by adoption living at the time of adoption. It follows from
the language of Section 8 read with Clauses (i)& (ii) of Section
11 that the female Hindu has the capacity and right to have
both adopted son and adopted daughter provided there is
compliance of the requirements and conditions of such
adoption laid down in the Act. Any adoption made by a female
Hindu who does not have requisite capacity to take in
adoption or the right to take in adoption is null and void. It is
clear that only a female Hindu who is married and whose
marriage has been dissolved i.e. who is a divorcee has the
capacity to adopt. Admittedly in the instant case there is no
dissolution of the marriage. All that the evidence led points
out is that the husband and wife were staying separately for a
very long period and Mishri Bai was living a life like a divorced
woman. There is conceptual and contextual difference
between a divorced woman and one who is leading life like a
divorced woman. Both cannot be equated. Therefore in law
Mishri Bai was not entitled to the declaration sought for. Here
comes the social issue. A lady because of her physical
deformity lived separately from her husband and that too for a
very long period right from the date of marriage. But in the eye
of law they continued to be husband and wife because there
was no dissolution of marriage or a divorce in the eye of law.
Brajendra Singh was adopted by Mishri Bai so that he can
look after her. There is no dispute that Brajendra Singh was
in fact doing so. There is no dispute that the property given to
him by the will executed by Mishri Bai is to be retained by
him. It is only the other portion of the land originally held by
Mishri Bai which is the bone of contention.
Section 5 provides that adoptions are to be regulated in
terms of the provisions contained in Chapter II. Section 6
deals with the requisites of a valid adoption. Section 11
prohibits adoption; in case it is of a son, where the adoptive
father or mother by whom the adoption is made has a Hindu
son, son\022s son, or son\022s son\022s son, whether by legitimate blood
relationship or by adoption, living at the time of adoption.
Prior to the Act under the old Hindu law, Article 3 provided as
follows:
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\0233. (1) A male Hindu, who has attained the age
of discretion and is of sound mind, may adopt
a son to himself provided he has no male issue
in existence at the date of the adoption.
(2) A Hindu who is competent to adopt may
authorize either his ( i ) wife, or ( ii ) widow
(except in Mithila) to adopt a son to himself.\024
Therefore, prior to the enactment of the Act also adoption
of a son during the lifetime of a male issue was prohibited and
the position continues to be so after the enactment of the Act.
Where a son became an outcast or renounced the Hindu
religion, his father became entitled to adopt another. The
position has not changed after the enactment of the Caste
Disabilities Removal Act (21 of 1850), as the outcast son does
not retain the religious capacity to perform the obsequial rites.
In case parties are governed by Mitakshara law, additionally
adoption can be made if the natural son is a congenital lunatic
or an idiot.
The origin of custom of adoption is lost in antiquity. The
ancient Hindu law recognized twelve kinds of sons of whom
five were adopted. The five kinds of adopted sons in early
times must have been of very secondary importance, for, on
the whole, they were relegated to an inferior rank in the order
of sons. Out of the five kinds of adopted sons, only two survive
today, namely, the dattaka form prevalent throughout India
and the kritrima form confined to Mithila and the adjoining
districts. The primary object of adoption was to gratify the
means of the ancestors by annual offerings and, therefore, it
was considered necessary that the offerer should be as much
as possible a reflection of a real descendant and had to look as
much like a real son as possible and certainly not be one who
would never have been a son. Therefore, the body of rules was
evolved out of a phrase of Saunaka that he must be \023the
reflection of a son\024. The restrictions flowing from this maxim
had the effect of eliminating most of the forms of adoption.
(See Hindu Law by S.V. Gupte, 3rd Edn., at pp. 899-900.) The
whole law of dattaka adoption is evolved from two important
texts and a metaphor. The texts are of Manu and Vasistha,
and the metaphor that of Saunaka. Manu provided for the
identity of an adopted son with the family into which he was
adopted. (See Manu, Chapter IX, pp. 141-42, as translated by
Sir W. Jones.) The object of an adoption is mixed, being
religious and secular. According to Mayne, the recognition of
the institution of adoption in the early times had been more
due to secular reasons than to any religious necessity, and the
religious motive was only secondary; but although the secular
motive was dominant, the religious motive was undeniable.
The religious motive for adoption never altogether excluded the
secular motive. (See Mayne\022s Hindu Law and Usage, 12th
Edn., p. 329.)
As held by this Court in V.T.S. Chandrasekhara Mudaliar
v. Kulandaivelu Mudaliar (AIR 1963 SC 185) substitution of a
son for spiritual reasons is the essence of adoption, and
consequent devolution of property is mere accessory to it; the
validity of an adoption has to be judged by spiritual rather
than temporal considerations and devolution of property is
only of secondary importance.
In Hem Singh v. Harnam Singh (AIR 1954 SC 581) it was
observed by this Court that under the Hindu law adoption is
primarily a religious act intended to confer spiritual benefit on
the adopter and some of the rituals have, therefore, been held
to be mandatory, and compliance with them regarded as a
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condition of the validity of the adoption. The first important
case on the question of adoption was decided by the Privy
Council in the case of Amarendra Man Singh Bhramarbar v.
Sanatan Singh (AIR 1933 PC 155). The Privy Council said:
Among the Hindus, a peculiar religious
significance has attached to the son, through
Brahminical influence, although in its origin
the custom of adoption was perhaps purely
secular. The texts of the Hindus are
themselves instinct with this doctrine of
religious significance. The foundation of the
Brahminical doctrine of adoption is the duty
which every Hindu owes to his ancestors to
provide for the continuance of the line and the
solemnization of the necessary rites.
With these observations it decided the question before it
viz. that of setting the limits to the exercise of the power of a
widow to adopt, having regard to the well-established doctrine
as to the religious efficacy of sonship. In fact, the Privy
Council in that case regarded the religious motive as dominant
and the secular motive as only secondary.
The object is further amplified by certain observations of
this Court. It has been held that an adoption results in
changing the course of succession, depriving wife and
daughters of their rights, and transferring the properties to
comparative strangers or more remote relations. [See: Kishori
Lal v. Chaltibai (AIR 1959 SC 504)]. Though undeniably in
most of the cases, motive is religious, the secular motive is
also dominantly present. We are not concerned much with this
controversy, and as observed by Mayne, it is unsafe to embark
upon an enquiry in each case as to whether the motives for a
particular adoption were religious or secular and an
intermediate view is possible that while an adoption may be a
proper act, inspired in many cases by religious motives, courts
are concerned with an adoption, only as the exercise of a legal
right by certain persons. The Privy Council\022s decision in
Amarendra Man Singh\022s case (supra) has reiterated the wellestablished
doctrine as to the religious efficacy of sonship as
the foundation of adoption. The emphasis has been on the
absence of a male issue. An adoption may either be made by a
man himself or by his widow on his behalf with his authority
conveyed therefor. The adoption is to the male and it is
obvious that an unmarried woman cannot adopt, for the
purpose of adoption is to ensure spiritual benefit for a man
after his death and to his ancestors by offering of oblations of
rice and libations of water to them periodically. A woman
having no spiritual needs to be satisfied, was not allowed to
adopt for herself. But in either case it is a condition precedent
for a valid adoption that he should be without any male issue
living at the time of adoption.
A married woman cannot adopt at all during the
subsistence of the marriage except when the husband has
completely and finally renounced the world or has ceased to be
a Hindu or has been declared by a court of competent
jurisdiction to be of unsound mind. If the husband is not
under such disqualification, the wife cannot adopt even with
the consent of the husband whereas the husband can adopt
with the consent of the wife. This is clear from Section 7 of the
Act. Proviso thereof makes it clear that a male Hindu cannot
adopt except with the consent of the wife, unless the wife has
completely and finally renounced the world or has ceased to be
a Hindu or has been declared by a Court of competent
jurisdiction to be of unsound mind. It is relevant to note that
in the case of a male Hindu the consent of the wife is
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necessary unless the other contingency exists. Though
Section 8 is almost identical, the consent of the husband is
not provided for. The proviso to Section 7 imposes a
restriction in the right of male Hindu to take in adoption. In
this respect the Act radically depicts from the old law where no
such bar was laid down to the exercise of the right of a male
Hindu to adopt oneself, unless he dispossess the requisite
capacity. As per the proviso to Section 7 the wife\022s consent
must be obtained prior to adoption and cannot be subsequent
to the act of adoption. The proviso lays down consent as a
condition precedent to an adoption which is mandatory and
adoption without wife\022s consent would be void. Both proviso
to Sections 7 and 8(c) refer to certain circumstances which
have effect on the capacity to make an adoption.
At this juncture it would be relevant to take note of Jolly
Das\022s case (supra). The decision in that case related to an
entirely different factual scenario. There was no principle of
law enunciated. That decision was rendered on the peculiar
factual background. That decision has therefore no relevance
to the present case.
Learned counsel for the appellant submitted that in any
event, the land which is declared to be in excess of the
prescribed limit vests in the Government to be allotted to
persons selected by the Government. It was submitted that in
view of the peculiar background, the Government may be
directed to consider the appellant\022s case for allotment of the
land from the surplus land so that the purpose for which
adoption was made and the fact that the appellant nourished
a crippled lady treating her to be his own mother would set a
healthy tradition and example. We express no opinion in that
regard. It is for the State Government to take a decision in the
matter in accordance with law. But while dismissing the
appeal, we permit the appellant to be in possession of land for
a period of six months by which time the Government may be
moved for an appropriate decision in the matter. We make it
clear that by giving this protection we have not expressed any
opinion on the acceptability or otherwise of the appellant\022s
request to the State Government to allot the land to him.
The appeal is dismissed subject to the aforesaid
observations.
